Richard C. Butler: Thank you, Your Honor. Counsel for N.A.A.C.P. has made this statement that we have to weigh, the Court has to weigh, as it said in its lower -- in the Brown decision, previous decision, the irreparable harm on the one side as against on the other side. Now, here are the facts, the record points it out. I don't think anyone will dispute it. Here we have 2000 students in one of the high schools and we have hundred of others in the other high schools. These petitioners, although it's a class action of course, designated as such by the original plaintiffs. But there are only seven who would not be deprived of anything tangible or any benefit that you can really point to of, anything like a tangible -- in a tangible measurement. Now, as against that, if the public school system is at steak in Little Rock and this School Board earnestly believes that it is. Then you are effecting from an equitable standpoint, maybe not just the remaining 2000 students in Central High School but perhaps throughout the school system in Little Rock. Now, those are the balancing of the equities that, it seems to us, weigh heavily in favor of denying the vacating of this stay of the Eighth Circuit Court of Appeals. Now, I have tried as I said at the very beginning --
Earl Warren: Mr. Butler, really aren't -- aren't the rights of all the Negro children of Little Rock wrapped up in this case?
Richard C. Butler: Yes, sir. And their -- and their actual ability to get any kind of an education there in a public school system are wrapped up in it, Mr. Chief Justice, in our opinion.
Earl Warren: But I mean wrapped up in the --
Richard C. Butler: And --
Earl Warren: -- principle that we are litigating here.
Richard C. Butler: I think that's correct, Your Honor. And -- and we feel that -- that unless we are granted this stay that the whole thing might be in a flood and be washed down stream where no one benefits.
Earl Warren: I understand your (Voice Overlap) --
Richard C. Butler: And then, of course, it would be an empty victory indeed for the Negro students. Now, on that one point though, I think, theoretically at least opposing counsel and I can agree and that is that the balancing of these equities must be done, the irreparable harm that would be done to the students just in Central High School. If they have to go to school with troops marching up and down the hall. Now, as I start it out at the beginning, we don't -- we are not in a position to argue the case in chief. I have attempted to refrain from arguing it. We believe that there are many decisions which we should study and submit to this Court on the merits of the case and we have attempted to limit our argument on the pleadings that are now before this Court, but it is difficult, of course, to stay on that one limited issue when, of course, everyone is concerned about the entire issue, as it is shown in the entire case. Now, one other point and perhaps I did not emphasize this enough. Regardless, of whether or not the people of Arkansas should recognize the United States Supreme Court decisions as the law of the land. The plain fact is that they have not and it is most difficult for them to do so, if not impossible when the Governor of the State says, that that is not the law of the land then only Congress can really say what the law of the land is. Now, as lawyers we may take the position. Well, they're not informed but that is a fact and as long as the United States Senator from a neighboring State of ours says, it's not the law of the land and as long as our Governor says, that it is not the law of the land, not the set of law of the land. Mr. Chief Justice, you've been the Governor of a great state and if you --
Earl Warren: But I never tried -- I never tried to resolve any legal problem with this kind as Governor of my State. I thought that was a matter for the courts and I abided by the decision of the courts whether they were the courts of my State or in -- in their proper jurisdiction of the federal courts.
Richard C. Butler: We all realize that, sir. The point I'm making is this. That if the Governor of any State says, that a United State Supreme Court decision is not the law of the land, the people of that state until it is really resolved have a doubt in their mind and a right to have a doubt.
Earl Warren: But I have never heard such an argument made in the Court of Justice before and I've tried many a case over many a years. I never heard a lawyer say, that the statement of the Governor as to -- to what was legal or illegal should control the action of any court.
Richard C. Butler: I'm not advocating that Mr. Chief Justice, and I -- I trust that these words will be weighed carefully. What I'm saying is that the mass of people in a State wanting to believe a certain thing, if they are told by their chief executive that such and such is the law or is not the law, then if he is a popular and respected public official, they are inclined to believe him and what they want to hear.
Earl Warren: Well, a short answer to that is if they want to believe it, they'll believe it no matter who says it.
Richard C. Butler: Well, nevertheless, that is a fact and not a theory in Little Rock and that --
Earl Warren: I have no doubt --
Richard C. Butler: And -- and -- that is a fact and not a theory in many other localities other than in Arkansas, many --
Speaker: Is that (Inaudible) --
Richard C. Butler: Sir?
Speaker: -- that argument.
Richard C. Butler: Well, Your Honor we've gotten into a whole lot of things that maybe or not strictly directed towards the pleadings that are here before us, but we feel so earnestly about this. We feel that many people, judges, lawyers, various others have taken exactly opposite stands throughout this land. And it is my personal opinion and it's the opinion of many others, not just others that the people by and large and even judges and lawyers are not certain as to what deliberate speed means under certain circumstances. They're not certain about what equitable principle should be applied and when. They are not certain about laws that have not yet been tested for their constitutionality.
Speaker: You're asking that the law would be clarified not that we follow their dictations.
Richard C. Butler: We're asking for a period for orderly manner of process, Your Honor and we think that the orderly processes should dictate the stay of the Circuit Court being in effect until we have gotten our petition for writ of certiorari filed and if it's granted that we be allowed to present briefs and arguments on. That is as simply as I can state our position.
Hugo L. Black: If your argument based on the premise of the Senate's in your opposition that the reasonable provides that the end of the (Inaudible) the national policy that has been established. By then, state law supporting to override the Brown case that had been tested in the Court.
Richard C. Butler: Yes, sir. I think that's -- that's in our pleading.
Hugo L. Black: That's the premise of your argument?
Richard C. Butler: Yes, sir.
Earl Warren: Do you have any rebuttal Mr. Marshall?
Thurgood Marshall: Just one point, may it please the Court. That I want to --
Earl Warren: Yes -- yes. Go right ahead. Take your time. You have ample time.
Thurgood Marshall: There are two points. One was this question of this empty victory. We've had this argued in this case from beginning to end. And I -- I think the Court will remember that the eminent attorney, the late John Davis in arguing this verdict, the Brown case stood here and argued, the story of the (Inaudible) the bone across the bridge and looking in and dropping the bone. And I submit that that argument has been made to this Court, it's been disposed of in the Brown case. It has no bearing. On the question -- Mr. Justice Black's question about time to resolve these laws, I hope the Court realizes that as the School Board is making that argument that they must have time to get the courts to pass on the laws that were passed two years ago. The legislature is now passing a dozen laws of solid days and I will assume that in short time they'll be back asking for time to have those laws construed and that would, it seems to me, result in perpetual delay insofar as this is concern. The other question that Mr. Butler couldn't answer and I can't answer but I don't answer form newspapers that the three Negro children that did apply to the white schools were declined admission, that was in the newspapers by Superintendent Blossom and that he intended to maintain the policy of segregated schools come opening of this school term. I don't know how that could get into the record it's -- it's a mere newspaper statement but the last thing, I like to call the Court's attention, as I construe Mr. Butler's argument, except for the fact that he wants time to prepare briefs. He seems to be in complete agreement that the merits in this case have to be going into and I wish to restate that our opposition on that particular point. I -- the -- the balance into these equities, it's not as easy as it's stated. I realize the School Board has a difficult job but there's no solution there -- just three things that were mentioned in the Court of Appeals decision. One was that the (Inaudible) of -- of locks over the lockers and instead of punishing the people that did it, they replaced the locks. And I -- I hate to mention it in the court of law but the record shows in the Court of Appeals, opinion shows that the white children, the 20 or 25, a very small group start to practice of urinating on the radiators and instead of putting the children out, they put the radiators out. And it seems to me that there's no solution to this problem that is recognizes a difficult problem as the only possible solution to put the Negro kids out of school. I don't submit that that is the only solution. The record in this case would bare that out and so it seems to me that whether or not this Court goes into the merits certainly, these Negro kids and the others that are involved in the class action are entitled to the most affirmative relief possible out of this Court, before school opens, even if it's a consideration of the petition for certiorari.
Earl Warren: Mr. Solicitor General.
J. Lee Rankin: Mr. Chief Justice, may it please the Court. The government of the United States has a great interest in the maintenance and preservation of the public school system of this country. And the Government that is the executive branch feels that this Court had that heavily on its mind when it passed on the Brown cases. And the time that was given for the consideration over a period of four days asking for briefs especially from the Attorney General of the United States and any Attorney General of any State for segregation was either authorized or permitted. And the care that this Court used in assigning the task of determining the plan and implementation of this opinion of the Court by the local courts that would no one understand the situations. And then assigning to those courts, the duty and responsibility of recognizing in each case equitable principles of law in determining upon the method, procedure and timeliness of the action shows the consideration that this Court gave to the preservation of the public school system of this country. And if you go back to the Brown decision and study as terms, you'll see that this Court with due regard for the almost un-estimated value of the public schools to the American people. Used every care that it could conceive to try to protect that system provided the people who were trying to work in the public school system and as state officials had a duty also to preserve it in accordance with the Constitution of the United States said about the task to try to carry out the Brown decision in good faith in every step of the way. We all know as lawyers and the public knows it from its experience that the courts have had equitable principles that if it work -- that they have worked with over the According to Brown case centuries had worked -- that they have worked with over the centuries. And according to Brown case in a note, refers to that fact, a decision of this Court in which that is set out. And a court of equity does not ask people any time or any place to do things that are beyond their power, things that they cannot do but they have to try. They can't say we are going to stop obeying the laws today, it's difficult. I don't mean to infer in anyway a criticism of this School Board because they have it terrible time. They have had imposed upon them, action by state officials who have duties exactly contrary to their actions that no School Board should have had to deal with, with this difficult problem. And I'm sure that this Court in the decision of Brown case, a simple mentation did not want in any way to lose the public school system in obtaining and enforcing this principle of constitutional task. Nor do I believe for one moment that the two were inconsistent, that it's impossible for all Americans to have their rights under the constitution and be treated equally under the law by the government in all its various aspects and have to destroy the institution in order to grant those rights. There is ample provision in the Brown case, implementing the declaration about constitutional law -- for time, if it is actually needed in good faith to try to carry out this constitutional principle. It is all there and no court of equity in this country would fail to recognize those needs if they are properly brought to its attention and if the action is in good faith and everybody according to basic principles of equitable law has done everything within his power up to that point, to accomplish the court's decree. That's when an equity court comes in and acts to help out someone who has tried and done his level best in accordance with all the means of his command and then ask for some help. At that point, when additional time is asked for, we think this Court has made it plain that there can't be anymore of this talk about what the law is, is it what the Governor says today or a sender says tomorrow or a Governor of neighboring State -- State says the following day? The law is established, this country cannot exist without a recognition of the Supreme Court of the United States when it speaks on a legal matter, it's the law. But there must be a start, there must be a recognition that it got to be, then there must some kind of a start and I believe and do regard and careful consideration of the manifold difficult problems that the south has in this whole area, that there isn't a place in the country if they have the will, can't make some kind of a start, even if it's the smallest kind for it solving this problem, granting these rights and working them out. In some place, it didn't take time, longer time in and others and this Court recognized that and it has the wisdom to choose the method of the common law which doesn't say, “everyone has to follow one pattern, everybody has to do it this way” but it takes a case by case where you examine every fact, every factor in your community, every problem that the board has to deal with that is real and then works out the plan accordingly. But you must have a start. You can't say we're going to find out what the law is, and then subject to really find out what the law is, we'll start someday, maybe. There's got to be a good faith continuous of -- of all -- and all reasonable means used, as the government believes to try to carry out the plan once you start. And above all, no court of law in this land, state or federal can recognize that you can ever vow to force and violence in setting aside, faking or modifying a decree of the Court. The moment you do that, you give up law and order. This country can't afford any such price, no one can neither the southerner and westerner from my country, the far west to the east. We have paid too great a price, not only as Americans but the human race come this far along the road of lawful action and a rule of law to give it up when someone, even the small group as in this case, only 25 in the school used force and violence to scare out the enforcement of a court order. And then any change must provide active steps and progress during that modification. Can't just hold it all in a base and say maybe the climate will change. Maybe more people will agree, so we can see where the weight of opinion is whether it's with the courts or against them when we start to enforce the law. As agreed in this case that this Court has the power to take the action as proposed and we think that you have to start back at the Lemley decision. We think that's where the error occurred that there was a duty on the part of Judge Lemley to stay his order because he was changing the status quo. The Negroes were in the school, they were under the plan at the time of his decision. And so, at that point, when he was taking them out of the school, he was changing the status quo and that's where the error occurred. Now, we think there's no reflection on the Eight Circuit in setting aside the stay of the Eight Circuit because we -- we -- that that court had in mind that in the ordinary procedure, this matter would reach this Court and that probably this issue should be decided at least by a denial of service by this Court in the final analysis. And that it was -- with that in mind, but with this Court sitting as a complete Court, we think, that there could be no purpose in leading that order in effect because the Court could determine this matter properly whether there was a basis for certiorari and then proceed to Court.
Speaker: (Inaudible)
J. Lee Rankin: Yes it would be a very unusual action. And I hope I can argue to justify such an unusual action. It is not on unprecedented as the clerk -- as counsel has conceded. But it is very unusual for this Court and I want --
Felix Frankfurter: Have we ever -- have we ever passed on a petition for certiorari that wasn't before us?
J. Lee Rankin: No, Mr. Justice Frankfurter, you have asked that it be filed during --
Felix Frankfurter: That's a very different thing.
J. Lee Rankin: During argument and you have --
Felix Frankfurter: That's a very different thing.
J. Lee Rankin: You have passed upon the question of stay with the -- by passing upon the merits and losing it.
Felix Frankfurter: That's -- that's another difference.
J. Lee Rankin: That's right. We have gone into the merits of this case with the belief that we felt that that was our duty to the Court because one of the -- the great elements or the important elements of the question of the stay is the probability of success on appeal. And the courts have said that, this Court and others many times that if there is no reasonable probability of success on appeal, then the stay should not be granted. So, we felt that we had to face up before the Court to the question of whether or not there was a reasonable basis for this Court to grant any relief on a petition of certiorari on the merits or we had to say to the Court, a stay is reasonable. Even though in balancing the equities we might lean towards going back to reserve the status quo that existed when Judge Lemley started. We would still have to say to the court that if there was something in the merits of this case that deserved it, that a stay might be reasonable and would have been entirely a different argument. Though, we have addressed ourselves to the proposition that there is nothing to this case that would justify this Court ever granting certiorari or acting upon the merits of it. And there is no probable success that could be obtained by the petitioners in -- in this action, because under the law, they are not entitled to relieve at the hands of this Court.
Speaker: (Inaudible)
J. Lee Rankin: That is our position. Now, the whole matter boils down as we see it to exactly what the Court of Appeals of the Eight Circuit said. The Negroes did nothing to cause this situation. All the difficulty that you have is force and violence that was developed by a relatively small group of people who were opposed to the implementation of this decree of the Court. It appeared inside the school and outside of the school. But that's all it was and the Court of Appeals are finding the facts as they were found by the lower court said that they could not accept the conclusions of that court. They found -- the Court of Appeals found that the cause -- the cause and effect of that action throughout was opposition to this Court's decision and the implementation of it and with the use of force and violence. Now, this Court has said that the case is referred to by counsel, that you cannot accept force and violence as a justification or modification of a decree that there is no basis in this whole situation except to that. Now, there is a further fact and further claim that there was a deterioration of educational standards in this school because of the implementation of this decree. And the Court of Appeals held that that deterioration was not due to the implementation of a decree or any act to these colored children but was due to these people using these unlawful acts of violence and force to try to defeat the decree, the decision of this Court and its implementation and that that could never be a ground for any kind of relief. Of course this Court already anticipated that grounds, that the vitality of the decision could not be defeated by any -- any opposition on the part of the populace as it's been argued before this Court. The Court went into -- in some detail, examples of various types of problems that anticipated the school districts might have, that could be considered not merely in the implementation of the original order or plan but for changes as time develop to show that those changes became necessary in the operatin of the plan. But of course, nothing like force and violence or opposition to the decision itself was recognized. In fact, the Court (Inaudible) would not recognize that. I don't mean to, in these remarks, to criticize the School Board. I do -- do not want it to be construed in that manner but I do think, the Government takes the position that the School Board did not exhaust all of the things that they could have done to try to solve the situation. And I -- they probably could not be blamed or because of the harassment that they suffered but when you considered the matter in a court of equity, you have to recognize that as a crime first consideration have they exhausted, the various steps that they might take to carry out the court order before they ask for remedial relief against it. There are two respects that the school district did not do what it might have. They're referred to by the Court of Appeals. One was to seek a Hoxie or Clinton type of injunction against the acts of people who are making all the trouble for them. Now, it's clear in the record that they knew the names of the various people in the organizations who are engaged in the opposition and leading and participating as clear. So, they have the ability and they can't regain say that they were officers of the State of Arkansas. It was their official duty to do what they could and they should have resorted to the courts without such injunction and we believe that would have made a material difference. If after such an injunction, there was a violation to such an extent that the lawful forces in the area would bear in mind, have the primary responsibility in this country to maintain law and order, could not maintain law and order. And the other forces that might be called upon, the assistance of the federal government were unable, then we would have a different situation for an act of court to consider but they didn't do that. And that is an important aid that they could have obtained for themselves before they appealed to the court. There is no question of what there could have been, firmer discipline within the school itself and that it would have aided materially in maintaining the educational processes on a level these children both white and colored were entitled to. But when you talk about a deterioration of the educational process in this school, it seems to me that one of the things that all educators, certain teachers would recognize is that part of the educational process, is the attitude and conduct of the teachers, the personnel of the school and the children themselves. And part of their responsibility is to get across to those teachers and the teachers to get across to the children, and those that are in the educational process. The responsibility to enforce the laws that we do live in a country where we seek to maintain law and order for the benefit of all the people that the Constitution and each of the rights that every citizen has under it is precious to everyone of us. Not just the rights that I like and want for me or that you like and want for you but all of this, for every man and woman. And that if you teach these children in Little Rock or any other place in the country, that as soon as you get some force and violence, the courts and law on this country are going to bow to it. They have no power to deal with it. They will give way to it. We change everything to accommodate the (Inaudible). I think that you destroyed the whole educational process then and there. If out of this difficult and undesired situation, the people of Little Rock and these children who shouldn't be hurt by these problems, learn that constitutional rights in this country are precious that they have a duty to these Negro boys and girls in this community to help them get their constitutional right. And this constitutional right happens to be the right to enter a school at any (Inaudible). But someday they will want other constitutional rights and be able to exercise them, freedom of speech in the press and everything else that we consider, so wonderful in our form of government. And you can't tear down part of those rights without losing others in the process. And there isn't any part of this country that doesn't have a tremendous state in maintaining each and all of those rights for all of its people. And I'm confident that as the years go by where people of the south, as a people will realize that they have a steak in each American citizen being a full citizen with full and complete rights like any other and they will be anxious to support and fight for that at every opportunity. It seems to me that we are now at the crossroads in this important question. The people of the country are entitled to a definitive state on this Court as to whether or not force and violence, opposition to the Court's decision aren't enough for not merely getting a modification to try to adapt the real problems after they have exhausted their remedy. But to just hold everything up and goes back with as step taking everybody out that you tried to believe in. And the basic question all there really is in the case is whether or not we stand as a Government of the United States and all of its power and strength, as well as its consideration of the difficulties and problems that are real, that people have in trying to carry out quarrels. We insist that there must be a rule of law, that we will not abandon for a moment the heritage that has been delivered up to us by the efforts of man over centuries.
Earl Warren: Mr. Marshall, do you have anything to say in response to the Solicitor General?
Thurgood Marshall: No, sir, if Your Honor please.
Earl Warren: Mr. Butler, do you?
Richard C. Butler: Yes.
Earl Warren: You may proceed.
Richard C. Butler: If the Court please. We likewise do not ought to be critical of the Attorney General's office but we have some ideas about where it may have failed in a few instances. In the Honorable, Mr. Rankin's summation, he says in one part of the argument that this Court should give a definitive statement and then he argue strongly that unquestionably, the writ of certiorari would be denied. It seems to me that that is a rather inconsistent position to take because if the writ is denied, I think, customarily at least just two words. Writ denied, come out. I don't see how a definitive action on the part of this Court or a definitive decision, an opinion could be rendered under those circumstances which Mr. Rankin advocated. Now, I have some difficulty in following just exactly, the position that the Government is taking in this thing. I don't get the same impression from a very hurried reading. It's true. We only receive the Government's brief this morning. We've only had a time to scan it but I don't quite get the consistency of the statements in the brief as against his admission that everyone has conceded that the Little Rock School Board has acted in good faith. Now, he made the statement that there should be good faith. The courts have found that the Little Rock School Board in all instances has acted in good faith. It has found many other things which the Circuit Court of Appeals finds no fault with Judge Lemley's findings. Among which is that this School Board cannot operate under the conditions which it faces as of this time unless troops are stationed in the building and outside the ground. Now, he states that it is time to come in and ask for equitable relief when all has been done within the power of the School Board. We submit that this record throughout and everything that the School Board has done has not only been in good faith, but they have gone to the point to try to carry out the United States Supreme Court orders and the orders of the law of federal courts, to the extent of being harassed and humiliated among their own people. They have done that day-by-day. They were faced with the situation in September of 1957, as we pointed out earlier of troops being ordered in by one commander and then troops being order in by somebody else. And those troops remain and in spite of that, the Little Rock School Board after it got into really the school year of operating, hoping all along that maybe the situation would resolve itself, therefore troops would be unnecessary. They went clear from the first part of September, clear to the latter part of February before going into the court of equity and asking for relief. We submit that that is good faith. We submit that they were entitled to equitable relief under those circumstancess.
Felix Frankfurter: Mr. Butler --
Richard C. Butler: Now --
Felix Frankfurter: Isn't there a difference between good faith in the sense of sincere, honestly entertained conviction and good faith in throwing out your hand and say we can't don't anything against the Court.
Richard C. Butler: Yes, sir. I think a different distinction could be made there, Your Honor, I do indeed. Now, the fact --
Hugo L. Black: And may I -- may I -- do you think -- you conceive of that as being a charge merely that the School Board of Arkansas has denied an equal protection or a charge in the State of the Arkansas has denied equal protection?
Richard C. Butler: Well, of course, it's the School Board that takes the brand of it and the charge is that the School Board, some people have made the charges and I understand that from the Solicitor General. That the School Board haven't done everything that it should have. Now, the fact is, the realities of the situation are that the N.A.A.C.P. which has rather vast resources and certainly, able legal counsel had a perfect right to come in and ask for injunctive relief and it did not do so. The Justice Department had every right to put forward any criminal actions that were in order and it did not do so. And now, we have the President of the United States saying that the process should go slower if we are to read the newspapers accurately and if the newspapers reported it accurately. Now, that's exactly the position that the Little Rock School Board is taking. We're not arguing and I hope the Court does not misunderstand this. The School Board has recognized from the beginning and still does. First, that the ultimate decision of any question of this kind is a question of law and that the final decision of the United States Supreme Court must stay. We have never argued otherwise. Furthermore, we say though that until such time and under the words of the decision itself, we should be given ample time within which to try to resolve these problems in -- in an atmosphere of calm rather than of his theory.
Felix Frankfurter: Could you correct me if I'm wrong, Mr. Butler, in concluding that the position of the School Board from the time of its original incubation of its plan and it's submission to the Court, et cetera, et cetera. Has never taken the position that there's any reason for not carrying out a plan except the interposition of force, not of its own choosing, but obstructed the orderly process of what it had planned and its original program was, the obstruction of course. Is that a fair summary of the situation?
Richard C. Butler: No, sir. I don't think it is, Your Honor.
Felix Frankfurter: Right.
Richard C. Butler: For this -- for this reason. The plan itself was to have been somewhat flexible. The School Board recognized that they could not set down hard and fast crew --
Felix Frankfurter: Right.
Richard C. Butler: They fail and they earnestly fail, that they could be upheld in showing the way, you might say, to the people there that the decision of the United State Supreme Court had to be carried out and their purpose was two folds, first, to maintain a public school system and second to carry out the orders of the federal court of any other court in some jurisdiction.
Felix Frankfurter: And so they begun -- and so they begun with the high school.
Richard C. Butler: Yes.
Felix Frankfurter: And they were going to stagger it.
Richard C. Butler: Yes.
Felix Frankfurter: We're going to gain experience through the introduction of nondiscrimination in the high school. But what I want to know is if that that plan was frustrated or obstructed, not planning education (Inaudible) or to the extent that there was educational experience, tension, etcetera. The cause of this fact though, the real reason was not anything due to what the plan of the Board or the experience gained there under but what happened to outside forces.
Richard C. Butler: Well --
Felix Frankfurter: Is that correct?
Richard C. Butler: I -- I don't know what was in the thinking of each School Board member.
Felix Frankfurter: But I'm not talking about the thinking. But -- at no point, is there any document in which they say, “We have now had experience, educational experience, and the plan which we mature honestly, began to be operative in the school year of 1957. The experience now shows us that educationally speaking, that is not a sound plan. Is there anything to suggest that the thinking of the School Board has originally contrived and divide and formulated was changed because of educational experiences rather than because -- beginning with the Governor's intervention construes outside forces begun to frustrate and block, the carrying out of what the School Board had agreed upon.
Richard C. Butler: I'd say, educational forces or processes, if you're going to use a broad term because the School Board was faced with certain realities.
Felix Frankfurter: It's because realities are attributable if you're going to trace them to their courses.It wasn't any educational experience. It wasn't the feeling that you couldn't have colored children with white children educationally speaking but because of the intervention of outside force, forces were brought into play which obstructed that which they have so carefully planned.
Richard C. Butler: Well, that's a difficult thing to answer because I say again, it's so intertwined. They don't know why they failed. They don't know exactly, they can't point to any one thing. They know this though. The School Board knows that they were faced not with theories but with realities such as armed troops parading the hall and the grounds of one of their schools.
Felix Frankfurter: I accept that.
Richard C. Butler: Now that to me then to answer your question that is an educational factor in the broad sense.
Felix Frankfurter: I should say it's a consequence -- as a consequence of those conditions, educational results follow.
Richard C. Butler: Well --
Felix Frankfurter: If you can't teach, if you're going to have troops in the classroom.
Richard C. Butler: That was exactly the feeling of Judge Lemley and Judge Lemley found and there has been nothing to the contrary that that is likely what will happen again.
Felix Frankfurter: But it wasn't the School Board that rejected the Armed Forces, was it?
Richard C. Butler: No, sir. The School Board didn't ask for them but there were times there when, I think, I'm correct in saying that they were glad that some force was there to protect order and keep people from being injured. Now the -- the Solicitor General tries to compare Hoxie, Arkansas and Clinton, Tennessee. There is absolutely no comparison and if anyone has been in those places, you can readily recognize that there is none. In the first place, you have an entirely different number of people involved, you have a much smaller school, you have a School Board in that place -- in both of those places dealing directly with the people that they and everyone else could put their finger on as interfering with it. That was not the case in Little Rock. The School Board does not know the law was interfering with it. And for counsel to say, that the record shows that there were only 25 students involved. That is not an accurate statement for this reason. There was some testimony that said that they felt there might have been as many as 25 ringleaders. But if you replace those 25, there would be 25 more likely and the fact is and this, of course, is undisputed that there were 200 students that this School Board suspended because they walked out in opposition to this. Now, we submit that the record shows that the School Board did use as firm measures as School Boards ordinarily can and should. It had no police power, it had no troops. It had no closed -- kind of plainclothesman. It had no on like that. It has absolutely no duty in our concept of the law to go out and preserve the public peace. That is not its function, it is not equipped to do that, and I think there can be no successful argument that there ever should be. The School Board should be equipped to maintain peace and order within a community. Now, in effect, the School Board did do more in Little Rock to try to work this thing out than either the Justice Department or the petitioners themselves. We say again and we emphasize, that we do not criticize them anymore than they criticize us for failing to do some of the things that other people might have agreed should be done, or people would argue now should be done from the standpoint of hindsight rather than foresight. But the fact is that no one in the Government brought any criminal actions, there was constant consultation between the two, trying to work out problems but nothing was done. The School Board did not advocate if they do anything, they didn't advocate because they're not law enforcement officers. They were trying as best they could to operate the school system. Now, we point out again that the School Board was left on the hands of a dilemma and the fact is, and it is never been disputed, that this School Board is in an untenable position. And all we're asking -- all we're asking at this time is for time to try to do those things and work out these problems that may bring peace and harmony and do it in a period of calm, when they can be done and not in a period of turmoil and strife. Even in cases and I don't want to argue the merits of this thing again but the -- it's -- it's a fact that even in cases where defendants are found to have violated antitrust law. And in those cases someone's constitutional rights are always involved or their legal rights.As much as five years or more, in many cases, people are given time within which to dispose of holding. And do it in an orderly fashion. That's the whole purpose. Now, shall the courts deny citizens in a community, a reasonable opportunity to reach these solutions in a period of calm and quiet rather than with troops present and in an atmosphere of strife and turmoil? Shall the courts close the door on those who earnestly and conscientiously plead for an opportunity to seek answers in a climate of calm? Shall the courts force private citizens and officials and general assemblies to make decisions when the area is charged with the motions? Any such impatient attitude by courts would certainly not be in keeping with the decision in this case where it was stated that flexible principles of equity in adjusting and reconciling public needs should come in to being. Can it be logically argued that the ruling of this Court can be carried out, as this Court said it should in an effective manner, when schools are closed or if operated at all with armed troops parading not only the ground with the halls and classrooms themselves? Patients and forbearance for a short while might save our public school system in Little Rock which was once the pride of our community to vacate the stay order might as effectively destroy our public school -- school system under the present atmosphere and if not given time. As if you planted a bomb under each integrated school building in the district and lighted the fuses one-by-one. Only this Court has the answer.One answer leads to the immediate destruction, in our best judgment of our public school program in Little Rock, depriving white and Negro students alike of their search for an education. The other answer, without depriving these petitioners of any tangible rights or benefits gives a recess from a turmoil and the hope of acceptable solutions. This is the answer we perfectly see.
Earl Warren: Gentlemen, we all -- we all came together on rather short notice and I know the Court would have me thanked both Mr. Marshall and Mr. Butler for your able and helpful arguments made on such short notice. Mr. Solicitor General the Court is indeed indebted to you for your cooperative and -- and able argument in this case. Now, gentlemen we're going to take a recess for -- until 4:30 in this matter --