Warren E. Burger: We will hear arguments next in 75-503, Cook against Hudson.
George Colvin Cochran: Mr. Chief Justice, members of the Court, I would like to reserve 10 minutes please for rebuttal.
Warren E. Burger: Okay.
George Colvin Cochran: My name is George Cochran, I represent the petitioners in this case. I have with me, Mr. John b. Freese(ph) an attorney from Ashland Mississippi who handled the case to the Northern District from Mississippi in the First Circuit Court of Appeals. Primarily, due to Mr. Freese's efforts in this case, you know, I have the record as it is presented in the court, which I will spend a great deal of time on this morning. This case of course arises out of Calhoun County Mississippi. It would occur in Calhoun County as a Public School Board there made the decision not to re-hire the petitioners in this case for the sole reason that they sent their children to a private segregated academy, also located in Calhoun County. There is nothing in the record that indicates that the petitioners were nothing other than competent and respected by the students, fellow faculty members and the administration. Specifically the only reason they were terminated was due to their decision to exercise what this court is deemed to be a fundamental right in Runyon to send their children to a private segregated academy. Now, there are significant problems with the case as it now comes before you. One problem, I think is a policy as stipulated. To understand what happened in Calhoun County, I think one has to understand the policy under which the school board was operating. On page 9 of the record, there is a stipulation made by Mr. Freese(ph) in cooperation with counsel for the opposing for the school board. That this policy as applied was limited to teachers teaching in Calhoun County and living within the County and if they met these two pre-requisites and they had to send their children to the public schools of that County.
Harry A. Blackmun: Somebody could live just outside the County line and not be subject to the policy.
George Colvin Cochran: Mr. Justice Blackmun that is what I am getting to now. The policy as I brought to the court’s attention in my brief on the merits is altered from what I had in the petition for certiorari. I have cited the Court to page 298 of the record, which is the answer, filed by the respondents in the case as it begins. The answers filed by respondents indicate this policy has two problems. The first is if you are living in the County, then, and teaching in the public schools, then you must send your children to the public schools of Calhoun County. If you are living outside the County, then you must send your children to “public schools” not necessary the schools in Calhoun County. On page 32 of the record --
Speaker: Very well, your children might not even be eligible to got to schools.
George Colvin Cochran: In Calhoun County, there would be that problem, yes, yes. On page 32 of the record, counsel for respondent refers to the policy as stipulated and alters it somewhat. This time, the policy is described to me that if you teach in the public schools of Calhoun County then you have to send your children to “public schools.” So, we have a difference in the record as to what teachers had to do to comply, that is why they send the children to public schools of Calhoun County or to the public schools anywhere in the United States. This is kind of firmed up on page 134 and 135, the final records in the record to it. Mr. Freese is examining an expert witness and he refers to the policy as applying to teachers having to send their children to the public schools in the county. There is an objection made by opposing counsel and the question is rephrased in the context of sending children to public schools. I choose to say that the policy has two separate facets to it. One; sending your children to public schools at Calhoun County, and two, sending your children to “public schools” and this dovetails have been quite nicely with what you have in the record with respect to teachers who were threatened not to be re-hired because they sent their children to schools that might not have been public.
Speaker: Is your position, the same as that taken by the Court of Appeals?
George Colvin Cochran: No, the Court of Appeals adopted Judge Katie’s finding with respect to policy and that was in essence that if you taught at the public schools of Calhoun County, you have to send your children to the public schools of that county. But it does not match with the record because we have the innex (ph) who were black teachers in Hamlin, a white teacher sending their children to school outside of Calhoun County and checks are made as to whether or not these schools are public or private. The indication is, there would have not been re-hired.
Speaker: But ordinarily if the District Court makes a finding and somehow the Court of Appeals upholds it, we do not review that kind of evidentiary point.
George Colvin Cochran: On page 509 of Tanker, the court very clearly says it will make an independent review of the record, when First Amendment questions are an issue and in Tanker, you did make an independent review, it all goes to the point of saying the District Court said that we would not review it?
Speaker: Do you think that those were historical facts --
George Colvin Cochran: I think it is critical in deciding the constitutional issue in this case. And it is part of constitutional facts as to —
William H. Rehnquist: Do you say that the constitutional facts or any fact that might be relevant to the ultimate decision on the constitutional question including what days school opened in Calhoun County in a particular year?
George Colvin Cochran: No, Mr. Justice Rehnquist, what I am pointing to with this fact is that, in order to understand the purpose and the thrust behind what the public school board in Calhoun County was doing, I think these facts are critical because we have a very articulately drawn policy and you have to focus in on the thing to understand exactly what is going on the county. That is the only point I am trying to make and the other point is that if you do not construe the policy differently, then the court of Appeals and the United States District Court then you can not deal with these other teachers whose re-employment was threatened because they sent their children to, let us say schools in Atlanta or Jackson Mississippi. That is the only point I am trying to make. I really do not think it is critical except there is a problem with the record on the basis of exactly, how this is policy operated. I believe that if you look at the record, you can ascertain that fairly that the policy has three purposes. The purpose has been dealt with by the courts below, of course, has been compliance with the segregation order entered by Judge Katie in 1968. Taking positive and affirmative steps to implement a unitary school system. I will talk about that purpose later on. I think there are also two other purposes that are clear from the record. One is, ensuring dedication by public school teachers to the public schools and this is clearly all the expert testimony in this case indicates that one of the primary thrust to the policy was to ensure the loyalty on the part of the teachers. The theory being, if you do not send your children to the public schools and you will not be loyal to the schools in what you are teaching. The record also bares out that this aspect of the policy, that is ensuring dedication was carried out in fact, by the persons responsible for it. Mr. Hudson, the school principal. There are two parts of the record in which indicate or highlight instances of how the policy was implemented. You have the innex (ph) who are black teachers teaching in the Calhoun City School System. They sent their children to a school in Atlanta and they were threatened with termination until it was found that these were indeed public schools. Same thing with Hamlin who sent his children to the Magnolia School for the Deaf and again his – being plump was threat at that time.
Warren E. Burger: Do you think it would make any difference to your case, if the conduct of the school board here were pursuant to a statute enacted by the legislature in the state of Mississippi as distinguished from an adhoc policy of the local board?
George Colvin Cochran: Mr. Chief Justice that would be if the Mississippi State Legislature passed a statute which in essence decreed that public schools could mandate the teachers teaching there had to send their children to the public schools.
Warren E. Burger: It would not could, must.
George Colvin Cochran: Must. Clearly, there would be First Amendment problems Pierce v. Society of Sisters and a serious encroachment on the exercise of First Amendment rights for the teachers.
Speaker: What I am trying to get at is the difference between the sporadic decisions by local school boards that declared policy of the states by its legislature.
George Colvin Cochran: Well, but still the difference between sporadic and policy by the state legislature, still you have First Amendment problems of the teachers involved.
Speaker: But do you think there is any difference in degree.
George Colvin Cochran: You mean as to the empirical basis --
Speaker: Since in the Mitchell case, the court held certain First Amendment rights of public employees could be limited and that's been re-affirmed here at that time. If just the particular governmental agency, the head of the agency had made that decision, ad hoc, a policy of his own agency, do you think there might have a difference.
George Colvin Cochran: If it is ad hoc decision rather than the historical data gathering which you had at Michelle, you have the same problems because you are imprinting person’s rights without a serious record finding.
Speaker: Where did you get the First Amendment problem in this case?
George Colvin Cochran: Well, the mere fact that the teachers are exercising their fundamental right to send their children to a private sector.
Speaker: Okay, when you said fundamental right, you've said First Amendment right. How do you spell out of the First Amendment, a right on the part of the teachers to send their kids to a private school?
George Colvin Cochran: Well, you can read Pierce v. Society of Sisters to be a First Amendment case.
Speaker: Here there are no religious over there.
George Colvin Cochran: Well, there was a military school also involved in Pierce, but Runyun last term you all reaffirmed in no uncertain terms.
Speaker: This court reaffirmed.
George Colvin Cochran: Yes, the court reaffirmed.
Speaker: The Pierce v. Society of Sisters involved also the Hills School I think.
George Colvin Cochran: Yes sir, a military school.
Speaker: Just a private, non-sectarian school? Well do you think Pierce rested on entirely on the First Amendment?
George Colvin Cochran: No, I believe substantive due process case but in Runyan, you utilized that case to bolster the finding in Runyan that you have a fundamental right to send your child to a private school.
Speaker: Well, that's certainly the First Amendment.
George Colvin Cochran: No, the court dealt at length with whether or not it really was a first amendment right in Runyan.
Speaker: And what did it say?
George Colvin Cochran: The part resting on First Amendment, free association, part on Pierce v. Society Sisters.
Speaker: And you pushed both of it.
George Colvin Cochran: Both certainly I do. The point, I am trying to make is I do not think there is any question whatsoever, that these teachers were exercising a fundamental constitutional right, no matter how it is defined.
Speaker: In what way is this case different than a school board regulation that you have to live within the school district if you going to teach. Certainly, that could infringe your right of association to, if you want to associate with people in the next county.
George Colvin Cochran: Well, as you know, most of these cases have been tried on the right to travel theory and this court last term, reaffirmed in a short procurium that regulations such that of constitutional but did not point up to any fundamental constitutional right as being encroached by these regulations that require you to live in the area where you teach or work.
Speaker: You are speaking now of the Policeman and Fireman’s cases?
George Colvin Cochran: Well, Kelly is one but McCarthy.
Speaker: Those who help you or it hurts you?
George Colvin Cochran: Well, Kelly certainly does not hurt simply because, if we are going into Kelly, then Herlink (ph) was not determined to be a fundamental right in Kelly. If you are going into McCarthy v. Civil Service Commission, the short opinion last term, there is nothing in that opinion which indicates that the fundamental right was involved, -- that to be counter balanced against the state's interest in making you reside where you live. All of those cases are distinct on the basis of no fundamental rights involved. Here, we do have a fundamental right being exercised that is the right to send your child to a private segregated academy, under Runyan and Pierce.
Speaker: Pierce went off of liberty didn’t it?
George Colvin Cochran: Substantive due process liberty, Sir.
Speaker: Just say liberty, use the word liberty.
George Colvin Cochran: Yes.
Harry A. Blackmun: Somewhere when you discussed the new Mississippi legislation?
George Colvin Cochran: We would be certainly glad to take up at this point Mr. Justice Blackmun. There is a new Mississippi statute passed after the United States District Court Opinion, which in essence says that school boards can no longer require public school teachers to send their children to the public schools. Under the United States District Court Opinion, the Fifth Circuit opinion, Mr. Justice, I have a serious doubts, whether or not this statute is constitutional. The United States District Court says it is part of implementing a court desegregation decree, that positive and affirmative should e taken and one positive and affirmative step is you cannot send your child to a private segregate academy.
Harry A. Blackmun: Well, the District Court did not require this school to impose such a condition.
George Colvin Cochran: No but on page 30, if you look at page 39A, in a petition for certiorari, the last part of the opinion written by Judge Katie(ph), he refers to what school board has done as part of its affirmative duty. The Department of Justice takes the same position on Page 402 and 403 of the record, you have a letter from David Norman of the Department of Justice when he comments on this policy and he indicates that the Department of Justice position is that this is part of the duty under a court desegregation decree to take positive and affirmative steps. So therefore, if it is part of a court decree, vis-a-vis, implementing unitary school system then the statute is going to be unconstitutional as applied to teachers who sends their children to private segregated schools.
Harry A. Blackmun: Well, but judge Katie did not have that question before at my rule.
George Colvin Cochran: No, he did not. The statute was passed after Judge Katie entered his decree but this circuit, of course, did not take it up and footnoted away, there is no question, Mr. Justice Blackmun that the statute is retroactive. We have an Attorney General’s opinion that indicates it is not retroactive. Again, my contention would be that the school board at this point cannot comply with that statute simply because it is under Fifth Circuit order, what they are doing is constitutional. So you have a conflict between constitutional requirements by the Fifth Circuit and the state statute.
Speaker: Well, I do not believe the court Of Appeals held it -- the school board must have this policy only that it could. That's not about that, that's not the real conflict.
George Colvin Cochran: That’s the problem. In reading the Fifth Circuit opinion is difficult to really understand what the Fifth Circuit is saying because you have a complete split between Judge Coleman(ph), Judge Ronie(ph) and Judge Clark(ph), but the opinion written by Judge Katie are clear reading of this opinion would indicate that as part of the affirmative duty to implement a Unitary School System, this type of decree should and must be implemented. That is the way I read Judge Katie’s opinion and he is adapting it as his own. That opinion says he starts off his opinion talking about his court order in 1968 to integrate the schools positive and affirmative steps. The latter parts of his opinion, he is approving this and making it part of the court order. I still would say that the state statute is in constitutional jeopardy, when read in the context of lower court opinions.
Speaker: Where is the text of the new statute, I cannot --
George Colvin Cochran: It is in Footnote 5 of my brief on the merits.
Speaker: Thank you.
George Colvin Cochran: The new statute -- it would be found in the respondent’s brief on the merits. It is located on page 19. Well, first, let me get back. This school board in Calhoun County, one part of the thrust of the policy was to ensure dedication and loyalty on the part of the teachers. This is completely divorced from compliance with court decree to implement a Unitary Schools System. Another factor, which is clear in the record that motivated this decision, is the private segregated academy itself. You get testimony on the records such as that from John Bert, a superintendent, where he is speaking to the policy and speaking in terms of we do not need a private segregated school in Calhoun County. In another portion of the record, you have Malry(ph) who is a School Board President, on 218, he is questioned on direct examination as to what influenced him or the board in passing this policy and he puts in the record newspaper clippings, showing fundraising activities on the part of the academy. It is obvious that the part of the influence and part of the thrust behind what the School Board was doing was to curtail competition on the part of the private segregation academy, another aspect of the policy that has serious constitutional problems under Pierce v. Society Sisters. The last part of the policy which the lower court has spoken to is compliance with the court order to integrate the schools. In looking at this aspect, I think it is a correct thing to do to look at the history of what was going on in Calhoun County at the time, this policy was passed in order to ascertain whether or not, this policy was really needed in order to implement a Unitary School System under the court decree. Now, Malry(ph) the School Board President testified that the policy had been under consideration for 2 or 3 years, which would mean in essence that the school boards are thinking about this policy immediately after it was put on the court order. That is in the context of the United States District Court Judge had not gone far enough in his order, and that they should take independent steps to -- beyond that which the United States District Court ordered. There are 2400 students in the Calhoun County system. At the time that the policy was passed, only eight teachers were involved sending their children to private segregated schools. The school were petitioners were. I will continue on rebuttal, that is 10 minutes, thank you.
Warren E. Burger: Mr. Hickman.
Will A. Hickman: Mr. Chief Justice and may it please the court. At the time that the Calhoun School Boards were under desegregated order, and pursuant to the mandates of this court to take affirmative actions, to do what they felt necessary whatever steps to be necessary to accomplish, elimination of Segregation Root and Branch, this board adapted a policy. The policy as I stated an 8/9 that prior to employment or re-employment of any teacher, the children of that teacher living in Calhoun County would attend the public school. That is policy that was stipulated by council at the beginning of the hearing in the District Court. You should keep in mind that this was an unwritten policy. That it was only stipulated after some discussions between the members of the board, between counsels of the petitioners and it was determined that that was the policy.
Speaker: Any exception or any question or hardship or anything lately?
Will A. Hickman: The policy as it was drafted on the first, and as the District Court recognized applied lately to all school. But, as the District Court found and from the elements of deuce that to hearing, there were no schools in Calhoun County other than this one racial discriminatory, all-white private academy, which incidentally had Plaintiff Charter(ph) for organization 19 days after courts desegregation order.
Harry A. Blackmun: Was there any special school for handicapped children?
Will A. Hickman: No sir.
Harry A. Blackmun: Suppose there had been.
Will A. Hickman: The President of the Board justified that, that would have been taken of that time, I believe it is his words. Now, in all canniness the Superintendent and the prospect testified that it was a blanket policy. Mr. Justice Blackmun, I would say that you would have to take the background of this rule of county school board, rule of the superintendent and rule of principal in an area where there are no special schools. When they said, it applied to all schools, and if Judge Katie found -- we submit that we are talking about Calhoun academy.
Harry A. Blackmun: How many children have adopted in Calhoun, it must be 200.
Will A. Hickman: In the academy, yes Sir.
Harry A. Blackmun: Did this in your estimation, did it or did it not pose a threat to the functioning of the public schools?
Will A. Hickman: It did.
Harry A. Blackmun: By sheer numbers?
Will A. Hickman: Well no, I would not say the numbers, I would say that this board was under the order of the court and in order for it to attain the support that it had to have in this community, it had to make sure that the teachers, the administration did support their action in carrying out the District Court’s order, to eliminate all of these influence that is lingering remnants of segregation overruled in branch. And that by this teacher being in the classroom and as elements of deuce the trial indicates, that I am standing in a public classroom, I am paid from state tax money, I am sending my child to a private school. The student could perceive a rejection on the part of the teacher and say, “Alright, this school is not fair enough. My child is not going to this school. I do not think the school is good enough?”
Thurgood Marshall: Could you prohibit the teacher from making a speech against it?
Will A. Hickman: Could we prohibit the teacher?
Thurgood Marshall: Yes sir.
Will A. Hickman: Justice Marshall, the presence of the teacher in the classroom without saying anything.
Thurgood Marshall: The teacher made a public speech outside of the class. Could she be denied employment because, she made this speech outside the class calling for segregated schools and oppose to integrated schools?
Will A. Hickman: Your honor, during this transition period and while on the court order, I would say yes.
Thurgood Marshall: She could do?
Will A. Hickman: Yes. I would say that during the transition parents...
Thurgood Marshall: That school board could deny her employment.
Will A. Hickman: I would say that during the transition period. That if the teacher went into crusade, and took action contrary to this court order.
Thurgood Marshall: I said she made a speech, in which said she was in favor of segregation and oppose to the court order, and oppose the integration. One speech.
Will A. Hickman: I would not think just one speech.
Thurgood Marshall: How many?
Will A. Hickman: Well, I think it will depend on the effect that it would have. I think that depend on where the speech was made, I think that if it was made on part of Calhoun County where a lot of people heard it.
Thurgood Marshall: Made in the public square, in the County C.
Will A. Hickman: Your Honor, during the transition period and while this board was on the court order, if that speech was made in Calhoun County Mississippi on a public square, I would say that the board would have the right to curtail.
Thurgood Marshall: The freedom of speech guaranteed by the First Amendment.
Will A. Hickman: That is correct.
Thurgood Marshall: And they would have a right to do that?
Will A. Hickman: I would say that under that circumstance, -- at that point in time, maybe temporary and I make this point. I think that this is a temporary action. We do not contend, Your Honor that this action is a permanent action. It may well be that in another area in the same school where the teacher could apply on having the child in public school, it would have the same effect, during this transition period. This is a problem area when the board is under the court order to bring about the de-segregation, take affirmative step, when statements are such —
Thurgood Marshall: During that period, the freedom Of Speech goes backward, temporarily.
Will A. Hickman: I say temporarily, very temporarily and I would, I say this, your Honor.
Thurgood Marshall: Which case do you relied on for that?
Will A. Hickman: Well, I want to quote Mathusa case...
Thurgood Marshall: Which case?
Will A. Hickman: Called Mathusa, komastus. It is a case involving during Japanese interment.
Thurgood Marshall: Koramatsu.
Will A. Hickman: Koramatsu, Yes Sir.
Thurgood Marshall: Oh I see, you have got another one.
Will A. Hickman: Well, I would rely on the Scumville (ph) case, yes.
Thurgood Marshall: Which one? I mean, the case that said that temporarily you be denied your first amendment right?
Will A. Hickman: Well, we have a Fifth Circuit Court Lee County v. McCann under the (Inaudible) case, where the teachers have applied for their jobs in order to obtain the ratio, certain teachers were not able to get their job back. In fact, they lost their jobs because of compliant with the order of the court.
Thurgood Marshall: First amendment was in that case? I have got my freedom of speech, it is very simple point. Well, that is your position.
Speaker: Let me suggest an activity a little less than making the speech that Justice Marshall has suggested. Suppose the public school teacher served on the Board Of Directors or Board of Trustees without pay, so that there is no moonlighting problem, served on the Board of Trustees of the segregated academy. Do you think that would be grounds for termination.
Will A. Hickman: I would think that in this transition period and with a history of this academy, being formed within the 19 days, perhaps the court desegregation orders that where the teacher on the Board of Directors in Calhoun County, on this private school that the board would have the right to temporarily curtail.
Speaker: Well Mr. Hickman, let us try to put this thing perhaps on a little broader context. Supposing that during the height of the Vietnam War, somebody on the South East Asia desk in the State Department makes a public statement saying, he thinks that the government policy is in entirely wrong in South East Asia. Do you think that the Government would have a right to fire him from that position?
Will A. Hickman: I think that -- was this person employed by the government?
Speaker: Yes, he is in the State Department. He is working on the implementation of the government’s policy presumably.
Will A. Hickman: Well, I would think that they had right to curtail.
Speaker: Mr. Hickman, is a policy involved in this case unique to Calhoun County in Mississippi? The only County in the state?
Will A. Hickman: Yes sir.
Speaker: This policy caused a legislature in 1974 in Mississippi to adapt the statute?
Will A. Hickman: That is correct.
Speaker: How important is this case then, generally?
Will A. Hickman: I beg your pardon?
Speaker: I said that, does this case have any importance then beyond the individual plaintiff?
Will A. Hickman: No sir.
Speaker: They are claiming damages.
Will A. Hickman: Yes, and the District Court limited of course to policy, and Fifth Circuit to Judge Ronnie to limits the policy.
Speaker: There are perhaps other counties and cities in the state of Mississippi that are subject to desegregation decrees.
Will A. Hickman: That is correct sir.
Speaker: Mr. Hickman, I couldn’t hear the justice’s question. Was it directed to the ‘74 legislation?
Will A. Hickman: Yes Sir.
Speaker: Even though it involved repetition, would you state for me what comment you have upon the effect of the new legislation on this case.
Will A. Hickman: Well, certainly this case -- the present statute prohibits the action that this board took. I would think that perhaps this action on the legislation was prompted by this action that this board took in Calhoun County.
Speaker: You saying that because of the passage of the new legislation, this case should be dismissed as improvidently granted?
Will A. Hickman: I would think that that has merit.
Speaker: Do you have an argument?
Will A. Hickman: No sir, I have not.
Speaker: You did not suggest in your proposition to the petition for certiorari.
Will A. Hickman: I did not, Sir.
Speaker: Why not?
Will A. Hickman: We felt that the limiting of the section of the policy by Judge Katie and as stated by the Fifth Circuit was sufficient for the reason for the court to affirm the decision. But, after submitting our briefs and going into that area, we frankly feel that those have merit.
Speaker: In any event, you agree, the case is not moved?
Will A. Hickman: Yes sir.
Speaker: Would you hire those teachers?
Will A. Hickman: We certainly would take the application. In fact, the record does not show that these teachers have made their application and made no application to be in the field.
Speaker: But you admit it is moved?
Will A. Hickman: Yes, it would be moved, in effect the statute was a draw up till now, until the determination was made.
Speaker: You mean moved -- as damages.
Will A. Hickman: If you review the background, you will find that the comments that had been made in the community -- as actually Brows v. Browen. Brow is the President on the school board attending this school at this particular point in time. That reference was made to derogatory statements about those who send their children to school with certain individual and this was a background when this policy was adapted. We submit that the finding of the District Court, find the fact and is compared by the Firth Circuit. It would be a proper -- just petition on this case, but in any event, we do find that there is basis for this case to be dismissed for the reason that certiorari be an improvident grant.
Speaker: Let me ask you one more question, suppose we have a situation in a neighborhood schools, we do not have that anymore, but suppose we did and the board said that the teacher in this particular school must live within the district. Do you think that would be a valid restriction?
Will A. Hickman: Well, I believe that the courts have approved the employee living within the district and the city where they worked and on that basis, I would think so.
Speaker: Any children that they have that would have to go to the neighboring school, in the residence --
Will A. Hickman: Well, if they were in the neighborhood school, yes, they would be. And that way, I do not think that would apply on its section, so. But again, I think it is in this particular area, that point in time, the particular facts as I stated, maybe in a short time that this had to be done. What we do not contend and little did we realize that when this action was taken that it would become involved to this extent. That is a temporary action, it may well be that this action is not required, had the statute had not been passed which of course, now prohibits. And for these reasons, we feel this matter should be affirmed.
Warren E. Burger: Mr. Cochran.
George Colvin Cochran: A couple of points. Apparently, Mr. Justice Blackmun, and others are referring to sue city case, as to whether or not this decision below should be affirmed on the basis of opinion by court that the writs have been probably granted. There is a quantum difference between sue city and this case. This is not an isolated instance that will not re-occur again.
Speaker: Well isn't it because of the juries, because of the statute now enacted by the Mississippi legislature, and also because of the Runyan cases decided in this court, if I may say.
George Colvin Cochran: Well, apparently, the amicus brief by the National Education Association is now being accepted.
Speaker: That amicus brief.
George Colvin Cochran: Yes, I do not think this court can really agree with the amicus presentation that because of Runyan that there will not be private segregated schools. That, on itself, on its face I think is highly improbable, but...
Speaker: But certainly, in Mississippi there is this statute.
George Colvin Cochran: Certainly there is, and there is also one of the most outstanding United States District Court Justice McCathew, Judge Katie, who is now utilized his judicial power to approve this type of regulation of First Amendment.
Speaker: He simply said it was permissible.
George Colvin Cochran: Yes, but that opinion can and will be cited for the basic proposition as part of a court order desegregating a school is permissible to utilizing the judicial power to curtail the rights of teachers within public schools, to send their children to private segregated schools and you cannot read that decision any other way.
Speaker: That is permissible.
George Colvin Cochran: Not permissible, the power is there...
Speaker: Now the Mississippi legislature said, it is impermissible?
George Colvin Cochran: Yes.
Speaker: That is the answer and it is not a constitutional..
George Colvin Cochran: No, no, I would contend that now the school board order for the school board policy is now a part of United States District Courts decree to implement a Unitary School System in Calhoun County.
Speaker: You really have to stretch to say that, that was his holding. Certainly, my Brother Stewart’s analysis is what the holding of the case was. You really have to stretch to give your construction to it. Don't you agree?
George Colvin Cochran: Then let us look at it the other way. Take Judge Katie’s opinion, take the Fifth Circuit opinion. These opinions can and will be read by other school boards and by the United States District Courts that this type of action is permissible, these of the Unitary School System. It is not like Rice v. Sioux City where this barrier will never reoccur again, whether or not the state could discriminate against aliens. That was isolated instance.
Thurgood Marshall: What is the promulgated decisions?
George Colvin Cochran: The decision below?
Thurgood Marshall: Yes sir.
George Colvin Cochran: Mr. Justice Marshall, I do not understand the question.
George Colvin Cochran: Well, I wonder how many states have followed it since then.
George Colvin Cochran: Since then? You mean as to...
Thurgood Marshall: As you say it, why don’t we follow it, if we do not do something with it, I would not know how it would happen already?
George Colvin Cochran: I have not briefed the issue of whether or not this case should be dismissed.
Thurgood Marshall: Well, can we assume that if some others had, you would have cited it?
George Colvin Cochran: On my brief on the merits?
Thurgood Marshall: Or now.
George Colvin Cochran: Or now? Well, that would be going outside but I can tell you that the MESA (ph) school system and we have receive work indirectly through just talking --
Thurgood Marshall: Action of school boards, “Action”.
George Colvin Cochran: No, I cannot cite you any other school boards doing it, but I think if you --
Speaker: (Inaudible)
George Colvin Cochran: But if you give me six months, I think I would be able to cite you to the United States District Court opinions in corporate in Cook v. Hudson decree curtailing the right of public school teachers.
Speaker: Well, I do not know this court should make to stop the District Court to decide the case.
George Colvin Cochran: No, Your honor, I am not asking, that District Court stop deciding cases, what we are here is to protect the first merit rights of public school teachers, to let them through no impediments whatsoever judicial or otherwise?
Speaker: I assume that Judge Katie incorporated this in his decree. The case might have come out differently in the Fifth Circuit. Judge Colman’s opinion certainly does not sound in terms of; that this was necessary and desirable for the court to do it, sounds in terms, this is within the discretion of the school board if they want to do it, fine, if they do not want to do it, fine.
George Colvin Cochran: Citing Adler, in the United Public Workers v. Mitchell. I have a great deal of difficulty reading Judge Colman’s opinion and trying to ask exactly what he means other than that the exercise of power by school boards is subject to no judicial review whatsoever. He starts out his opinion saying no substantial federal questions raised, and quite opposite I have a great deal of difficulty with that opinion. And I also have quite a great deal of difficulty with this problem of whether or not this case should be dismissed as improvident grant, in light of Rice v. Sioux City and I think this case has nationwide importance of that nation by itself, and it is not moved.
Harry A. Blackmun: Does Judge Katie’s view sustain a statute or a state statute saying that no parent may send his child to a segregated school?
George Colvin Cochran: Judge Katie on Page 39A, the petitioner per se, the reprint of his case specifically limits his decision to public school teachers sending their children to private segregated academy.
Harry A. Blackmun: Do you see any difference in principle?
George Colvin Cochran: In what way, Mr. Justice?
Harry A. Blackmun: Between applying the rule to just teachers or to parents generally?
George Colvin Cochran: You are talking about parents generally can’t send their children? Well, no, under Runyon, you have a clear right as a parent to send your child to a private segregated school.
Harry A. Blackmun: Well, that was in the holding of the case.
George Colvin Cochran: No, but I am talking about the introduction part of Runyon where you reaffirmed the right but then you go on to the right of the school under 1981, not to admit qualified blacks. But there is a difference between the 1981 obligation on the part of the school versus the right of a parent to send his child to a private school to promote racial segregation. And these two rights are separate. You cannot impute the school's violation of the law with the parent's exercise their right to send their children there.
Harry A. Blackmun: So your answer is that Judge Katie would not, as you said in his opinion, he would not have sustained a law applying to parents generally?
George Colvin Cochran: Not with the close reading of Runyon and Pierce v. Society of Sisters, the constitution pressed a squared there. It is just this problem with the teachers in public schools, and Mr. Justice Blackmun, I would like to go back to this again that this reliance on Rice v. Sioux City. To me Rice is not all applicable, that -- Frank Quitters (ph) opinion in that case, limits it to the fact that it will not reoccur again, it is no importance because of the new statute. This is not the case in Cook v. Hudson, it is an important issue, large articles written about it continually, it is not moved, it is a damage suit back pay. And this issue is going to come back sooner or later, and it is not an improvident grant case.
Speaker: Mr. Cochran, I wonder if you would respond to the question that Mr. Justice Rehnquist asked your opponent about a public employee working on the far Eastern desk being discharged for making a speech against the policy.
George Colvin Cochran: The entire thrust of this case is that absent -- the standards and the facts that you find in Tanker and Pickering, substantial disturbance alluring a professional duty to work within the institutional environment, the man can not be fired. And that is what we are working with in this case here.
Speaker: Would you concede that he could be fired if there had been evidence that children were distressed, or parents were distressed about the inconsistency between his job as a teacher in this very case.
George Colvin Cochran: Yes, in Cook v. Hudson, if you have a public school teacher who is sending his child to a private segregated academy and you can show a linkage between that act and alluring of his professional competence in the classroom, that is -- this act of sending a child to a private segregated academy has influenced the black students in such a way that he is no longer effective teacher, out he goes.
Speaker: So the question really turns largely on our view of the particular facts of this case.
George Colvin Cochran: I think the facts are clear, on page 20 -- the only facts in this record as to disturbance on the school, on 201 you get references that you would hear talk. A hard to pin down, on page 217, you would hear a parent say that his kids said such and such. On 212, this is Malry(ph), the School Board President talking. On 212, it says you would hear teachers talk. This is on direct examination, the only evidence is you would hear a talk. Mr. Freese(ph) on cross-examination, you go to 227 and 228, he is talking to School Board President, ask the school Board President on 227, do you know anybody in the county? Yes I do. On 228 he says, “Then who are these people making complaints?” Well, he is still not sure and you read on you will finally get the Simpson kids. The only thing in the record of Simpson kids’ complaint, on 229 asks, “Do you know anybody else that complained?” No, that is the only disturbance in the County.
Speaker: Does your case come down then in contending that the two lower courts were wrong in construing that as efficient evidence to show a threat to carrying out...
George Colvin Cochran: There is no fact in this record, which meets Tanker and Pickering standards. If you want to find where the commotion comes, I suggest Mr. Justice that you look on Page 392 of the record.
Speaker: But, does your claim require us to reexamine the facts, that's basically...
George Colvin Cochran: Yes, it certainly does and under Tanker, you have full power to review. If you look on 392, which is a School Board Attorney’s letter to Justice Department, he says in there that we have told the teachers that they would be terminated for sending their children to private segregated schools and we have caused quite a commotion in the county. I think the school board is a group that caused the commotion in the county, not teachers sending their children to private segregated schools. It is clear that the Fifth Circuit has to be reversed on this case and it should not be dismissed as improvident grant. This is not Rice v. Sioux City.
Warren E. Burger: Thank you gentlemen. The case is submitted.