Warren E. Burger: Swann against Charlotte-Mehcklenburg, Board of Education along with 349, Charlotte-Mecklenburg Board of Education against Swann. Is counsel ready?
Julius LeVonne Chambers: Yes Mr. Chief Justice.
Warren E. Burger: Mr. Chambers you may proceed whenever you're ready.
Julius LeVonne Chambers: Thank you. Mr. Chief Justice, and may it please the Court. These cases number 281 and 349, are here on writs of certiorari directed to the United States Court of Appeals for the Fourth Circuit. The Fourth Circuit adopted a new reasonableness test, approved the plan of the District Court for the junior and senior high schools, and vacated the decision and directed further consideration of a plan for the elementary schools requiring that the District Court apply a reasonableness test. The plaintiff's petitioned this Court for certiorari, this Court granted certiorari in Number 281 on June 30, reinstated the District Court's plan of desegregation and authorized further hearing by the District Court as had been directed by the Fourth Circuit. The District Court conducted further hearings during July 1970. And on August 3, 1970, applying the Fourth Circuit's new test of reasonableness found a plan and had directed in February 1970 to be reasonable and reinstated its February 5th order. The school board appealed to the Fourth Circuit and petitioned this Court for certiorari prior to the decision by the Fourth Circuit. This Court granted that petition on October 6th, along with the petition of the school board to review the plan of the court with respect to the junior and senior high schools which the Fourth Circuit had approved as reasonable. The court therefore has before it, the complete plan of the District Court which had been directed in February 1970, and re-approved by the District Court on August 3rd, 1970. We think that the decision of the District Court can be sustained under the equitable discretion of that court as authorized by Brown. We submit however, that the constitutional principles by which the District Court was guided particularly the requirement for the elimination of all Black and racially identifiable Black schools. On this record and under the circumstances of this case, we're clearly correct and should be sustained by this Court. The issues in this case are --
Warren E. Burger: Do you have to persuade us Mr. Chambers that they're clearly correct?
Julius LeVonne Chambers: I think Your Honor that under the appellate procedural rules for considering cases on appeal that if there is sufficient evidence or -- to support the decision below that the court should sustain the decision of the District Court. The issues on this case are one, whether the school board may continue to perpetuate all Black or racially identifiable Black schools, where such schools have been created and fostered by state acts, and possible means are available to disestablish such schools. Secondly, whether the reasonableness test adopted by the Court of Appeals which would permit continued operation or state created, all Black or racially identifiable Black schools, although feasible means are available to desegregate such schools is an acceptable constitutional test to be applied in school desegregation cases. The facts briefly summarized are these. At the time of this Court's decision in Alexander v. Holmes, County Board of Education, 45,012 up to 59,828 White students in this system were attending all White or racially identifiable white schools. 16,000 of the 24,714 Black students were in all Black or racially identifiable black schools, these students were attending 82 of the 106 schools in the system, only 24 of these schools were not racially identifiable. Judge Sobeloff noted in his dissent that the extensive segregation in this system was not fortuitous that it had resulted from practices of the school board which had interacted with other governmental discriminatory practices. So that at the time of the decision of the District Court, the Black and White population in this system, in school and at home, were virtually, entirely segregated. As the District Court noted, more Black students were in segregated schools in 1970 than at the time of this Court's decision in 1954. The court had found in April of 1969, that schools had been segregated or their racial identity perpetuated by practices and policies of the school board. The board had located schools, controlled school size, grade structure, in order to maintain segregated schools. The board had also controlled school districts and transportation to perpetuate racially segregated schools. It is too late in the day, 16 years after Brown to now construct some ingenious device to avoid the Brown decision. Black children and parents in Charlotte have struggled since Brown and began in 1965, with litigation in order to obtain a decree as the District Court entered in this case. They desired desegregated education and know that it can only be obtained under a plan like the one directed by the District Court below. It would be a rejection of the faith that Black children and parents have had in Brown, the hope of eventually obtaining a desegregated education. For this Court now to reverse the decision of the District Court, and now adopt 16 years after Brown, a test that would sanction the continued operation of racially segregated schools.
Potter Stewart: How do you define a racially identifiable school as to use your phrase?
Julius LeVonne Chambers: One Your Honor that has a substantial disproportionate number of Black students in the school and consideration of the percentage of Black students in the system.
Potter Stewart: In the system it's about 71% White and 29% Black?
Julius LeVonne Chambers: That's correct Your Honor.
Potter Stewart: Am I correct about that?
Julius LeVonne Chambers: Yes sir.
Potter Stewart: So, that if a school is 50-50, is that racially identifiable?
Julius LeVonne Chambers: Your Honor I think it would depend on the circumstances of a case and the facts in the case. In this system --
Potter Stewart: Well, how about the facts of this case, this school system, what is a racially identifiable school?
Julius LeVonne Chambers: I think that excess of 50% Black in a particular school would make that school racially identifiable.
Potter Stewart: And an excess of how many -- how much percentage white? 71% would exactly reflect the school population in the school district, so I suppose 71% White would hardly be racially identifiable as White, would it?
Julius LeVonne Chambers: I think that is correct Your Honor.
Potter Stewart: And how high would it have to get to be racially identifiable?
Julius LeVonne Chambers: In this system Your Honor, I think that 90% White would perhaps or excess of 90% White would perhaps make it racially identifiable.
Potter Stewart: So, a school in this system in defining ourselves to this case.
Julius LeVonne Chambers: In this system -- that's correct, Your Honor.
Potter Stewart: A school with 90% or more White students would be racially identifiable, and a school with 50% or more Negro students would be racially identifiable?
Julius LeVonne Chambers: That's correct Your Honor.
Potter Stewart: Would you think --- Was that -- excuse me. Was that the test of that phrase used in the District Court, I couldn't find really any further – bring it down to facts or figures than just that loose phrase, racially identifiable, that maybe I missed something.
Julius LeVonne Chambers: Your Honor I think that the District Court was basically concerned with the racially identifiable Black schools, but in the November decision of the District Court, which appears on page 655 of the appendix, the court sets out the schools that considers to be racially identifiable White and racially identifiable Black, this appears on page 660A, and here the court says that schools that are 86 to 89% White or higher are considered racially identifiable White.
Potter Stewart: So, the court's figure is 86 rather than 90%.
Julius LeVonne Chambers: 86%, that's correct Your Honor.
Potter Stewart: And is the court's figure 50% Black (Voice Overlap) racially --
Julius LeVonne Chambers: 50% Black or higher.
Potter Stewart: -- identifiable Black schools?
Julius LeVonne Chambers: That's correct Your Honor.
Harry A. Blackmun: Tell me how many schools at all had the (Inaudible)
Julius LeVonne Chambers: That's correct Your Honor.
Potter Stewart: Do you know if there's any and I don't know, I'm asking for information, is there any state in the United States that at one time another historically maybe a hundred years ago, 150 years ago, didn't have segregated schools?
Julius LeVonne Chambers: That did not have segregated schools?
Potter Stewart: Do you know?
Julius LeVonne Chambers: I'm not familiar with that Your Honor, I don't know. I do know that in this system that --
Potter Stewart: It was more recent.
Julius LeVonne Chambers: That's correct. And that the practices of the board which perpetuated the segregated system continued down through the present Act. We respectfully submit that the segregated school system considered by the District Court below was the result of the blatant practices of the school board designed to perpetuate a racially segregated system, that the District Court directed a plan that was both feasible and effective to a court, equal educational opportunities to the Black children. That the reasonableness test of the Fourth Circuit were merely postponed the enjoinment of constitutional rights by Black children in the system, that the school board, the federal government and the amici who have submitted briefs in this matter, offer no viable alternative constitutional standard to that -- followed by the District Court below. And that this Court should now clearly announce the rule, that every Black child who has been segregated, or denied equal educational opportunities by state practices, is to be free from assignment to identifiable Black schools at every grade and every stage of his educational experience. The District Court described Charlotte-Mecklenburg “The central city maybe likened to an autoMobile hubcap. The perimeter area to a wheel and the county area to a rubber tire.” We have here a map which shows the Charlotte and Mecklenburg County area that the court was concerned with.
Warren E. Burger: Counsel, it will be difficult to have your argument fully and accurately recorded if you get too far away from the podium.
Julius LeVonne Chambers: Alright. The area the court was presently concerned with was the central area of the city, which the court likened to a hubcap. This is where the Blacks are principally located in the city. The court described the dividing line between the Black and White residents in the city as the north trans-southern railroad line. 95% of the Black residents in the city are concentrated in the small northwestern part of the city. The District Court found and this finding was approved by the Fourth Circuit that governmental practices had created and contributed to this racially segregated patterns. One of the most pervasive was the practice of the Charlotte-Mecklenburg Board of Education, both before and after 1954. Both before and after 1954, the board located schools and controlled school sites to perpetuate segregation. Several all Black and all White schools have been built and/or have had additions since 1954. The board limited the capacities of schools, controlled grade structure and school districts and used transportation to perpetuate segregation. The District Court found that the board had limited and controlled school sizes and districts to perpetuate segregation, and of the 23,600 students transported in this system in 1969 and 1970, only 541 were transported to Black schools. The court further considered the governmental practices, which had contributed to the segregated housing pattern. The court considered the Urban Renewal Program, public housing, zoning, city planning, streets and highways, and private discrimination. All of these practices had interacted and created or fostered the segregated system that was before the District Court. Additionally, state constitutional and statutory provisions, which the District Court collected in its August 3rd opinion all contributed to the segregated system. The Fourth Circuit found compelling evidence to support the findings of governmentally created segregated schools and housing, and accepted the District Court's findings on the traditional practices of appellate review. The government concedes these findings and indeed asserts that these practices, particularly those of the school board contribute it to the segregated system. We have therefore an (Inaudible) state action case, no different from that considered by the court in Brown. We submit that under these circumstances, the District Court was constitutionally obligated to direct preparation and implementation of a plan that would disestablish the segregated schools root and branch. The District Court sought to do this by directing the board to prepare such a plan. On three occasions, the board simply refused to submit a plan which would discharge its constitutional obligation. In December, in default by the board, the District Court appointed an educational consultant to assist the court in preparing a plan. The court directed that the consultant followed such techniques as were necessary to disestablish the all Black schools or racially identifiable Black schools. The court set forth 19 principles to govern the court consultant. We submit that the principles set forth were clearly within the discretionary authority of the court, seeking to fashion an equitable remedy. This is particularly true where the party principally responsible has failed to discharge its obligation. The problem facing the consultant were these, one senior high school, four junior high schools and 17 elementary schools were all Black. The concentration of Negro students, and these schools was in a triangle, roughly four or five miles on each side. Nearly two third or 16,000 of the Black students were concentrated in these schools.
Potter Stewart: Were those schools located in that northwest quadrant, that you pointed out?
Julius LeVonne Chambers: That's correct Your Honor, we have a diagram here which shows the concentration of these schools and the north-south dividing line that the court mentioned. This line running through here is the North Tryon Street, and it picks up the southern railroad. This line running here is Trade Street which the District Court mentioned in this order. The concentration of the Black students were in this triangle, from Billingsville School up to the northwestern part of the city over to William School and then back down to the Billingsville School.
Warren E. Burger: Is that map on the same scale as the ones you used before it?
Julius LeVonne Chambers: That's correct Your Honor. It's a traced from the map presented here. And as the court found, sides running along this triangle were four or five miles.
Potter Stewart: Since we've already interrupted you, may I -- could you answer couple of questions to make it clear to me what -- just what is and what is not in controversy here, as I understand it, the Mecklenburg County outside the city school situation is really not in serious controversy, am I wrong or --?
Julius LeVonne Chambers: That's correct Your Honor.
Potter Stewart: I'm right about that?
Julius LeVonne Chambers: That's correct.
Potter Stewart: And that the further understand that the big argument is about the elementary schools, there is a somewhat more limited in minor argument about the high schools involving the transfer of some 300 students outward. But that the big controversy is about the elementary schools, am I wrong about that?
Julius LeVonne Chambers: That's correct Your Honor.
Potter Stewart: I'm right.
Julius LeVonne Chambers: Yes Your Honor.
Potter Stewart: Thank you.
Harry A. Blackmun: Mr. Chambers, let me bring you back to Mr. Justice Stewart's inquiry as to your definition of a racially identifiable school, do I understand from your question that under no circumstances in a unitized system, could a school be beyond the prescribed racial balance?
Julius LeVonne Chambers: Your Honor, I was addressing my answer to the Charlotte-Mecklenburg system.
Harry A. Blackmun: I'd like you to answer on a general as a matter of general principle.
Julius LeVonne Chambers: Your Honor, I think that it would depend again on the circumstances of a case and as we defined racially identifiable school and would be one where the concentration of Black students is substantially disproportioned to the percentage of Black and White students in the system. Now --
Warren E. Burger: Then it follows from that if there is one school beyond the limits that you proposed then it is not unitized, the system is not unitized.
Julius LeVonne Chambers: I would agree Your Honor provided that there are plans available which can be implemented to eliminate that disproportionate representation.
Warren E. Burger: This means then that you're arguing for racial balance?
Julius LeVonne Chambers: No, Your Honor, we are not arguing for racial balance as we understand both the board and the government to be saying. We tried to set that forth in a reply brief to the government's brief. We are asking for a plan that would disestablish the racial identity of all schools in the system, in a segregated system. And we think that particularly in this system on the facts of this case, that we have a plan that can disestablish all racially identifiable schools.
Harry A. Blackmun: Well, I'd like to get away from the facts of this case into a general area. One other question, do you draw any distinction between the reasonable test which the Fourth Circuit seemed to apply and the feasibility approach of the District Court?
Julius LeVonne Chambers: Yes I do Your Honor. The Fourth Circuit begun this test and I might say that this is basically the test that is proposed by the Government. With the statement that some schools can remain all Black or segregated in a unitary system. It talks about the limits that might be imposed and the test that we are proposing is one that would begin with the assumption that all schools can be desegregated and would require that these schools be desegregated unless no plan would be workable or could possibly be implemented.
Warren E. Burger: So, there is a difference between feasibility and reasonableness?
Julius LeVonne Chambers: Yes Your Honor.
Warren E. Burger: Alright. How would you apply this standard to a city or an area, school area which is 97% Whites and 3% Negro, do you mean that every school, each school in that system must be roughly 97-3?
Julius LeVonne Chambers: No Your Honor, we are not arguing for an absolute ratio or percentage in each school. We're arguing only for a test that would require no substantial disproportionate representation or concentration of Black students in a particular school.
Warren E. Burger: Well, obviously or I should think obviously, very likely in a 97:3 ratio, you wouldn't have any all Black schools, all Negro schools would you but -- would you concede that there might be some all White school?
Julius LeVonne Chambers: Your Honor I can't say because it would depend on the facts and circumstances of the case.
Warren E. Burger: You mean on the location of the 3%?
Julius LeVonne Chambers: That could be a factor.
Warren E. Burger: (Voice Overlap)
Julius LeVonne Chambers: Yes Your Honor.
Warren E. Burger: If they were scattered evenly through the total area then the natural consequence even of the neighborhood school concept would take care of it probably, wouldn't it?
Julius LeVonne Chambers: Your Honor I have some difficulty with the neighborhood school but if the students are assigned according to non-racial district lines --
Warren E. Burger: I'm assuming that one.
Julius LeVonne Chambers: And all the factors --
Warren E. Burger: A part of my hypothesis that no effort was made to direct them to a particular place, but you do concede that there would inevitably be some all White schools probably in that kind of a system, it could happen.
Julius LeVonne Chambers: Your Honor it might but again I'm talking about hypothetical that I can't really discuss because it would all depend on what the facts and the situation would be.
Warren E. Burger: Now then conversely, if you had a 97 Negro, 3% White, you then might again have unavoidably some all Black isn't that true, all Negro?
Julius LeVonne Chambers: Your Honor that again would depend on the circumstances and facts. It might but with all the factors that the court should consider, it might be that all the students could be assigned to schools without any substantial disproportionate representation of Blacks in any school or concentration.
Warren E. Burger: But I glean from your answer, since you said depends on the fact that you're suggesting that there is not an absolute constitutional requirement to take this percentage and mechanically put it in effect in each individual school in the system.
Julius LeVonne Chambers: That's correct Your Honor. I would say however that as the District Court sought to do here that it might be an ideal objective that a District Court or a school board might use in its discretion to prepare a plan. The District Court sought to direct the plan that would utilize the various techniques that had been utilized by the board in preserving segregation. This board has transported 23,600 students during the 1969-70 school year, an additional 5,000 students rode city buses at reduced fares, 55% or 670,000 students statewide were transported in North Carolina. Approximately 50% of these students in the state and in Charlotte were being transported were elementary students in grades one to six. Students were transported in Charlotte-Mecklenburg approximately 34 miles ground trip each day. The trip averaged one hour and 15 minutes, one way. Charlotte-Mecklenburg also transported approximately 700 kindergarten and pre-school students ages 4 to five years of age from 7 to 39 miles, one way each day. The average cost for transporting students was $20 per students per year or 22 cents per day. Transportation had been previously used to accommodate and perpetuate segregation. The District Court felt that they might also -- that transportation might also be used in order to desegregate the schools. Charlotte-Mecklenburg does not adhere to any neighborhood concept, the extensive transportation in the system refute any such notion, nor is the board proposing such now, particularly with the high schools and junior high schools, the basic difference between the plan proposed by the board and that ordered by the court is the lack of contiguous links or connecting grids in the court's plan.
Potter Stewart: Is there any analysis on this previous busing mileage that you told us about, 1969 and 1970 and before, how much -- what was out the county in connection with consolidated schools of the county and how much goes in the city?
Julius LeVonne Chambers: Your Honor the majority of the 23,000 students transported were in the county, the 5,000 students being transported by city buses were in the city.
Potter Stewart: Yes. But that was public transportation.
Julius LeVonne Chambers: Public transportation, that's correct.
Potter Stewart: I was talking about the school buses.
Julius LeVonne Chambers: Yes.
Potter Stewart: The majority of them was out in the county?
Julius LeVonne Chambers: The majority of them were out in the county.
Potter Stewart: They handle the consolidated -- the typical pattern and as we both know has been for the one room school house, rural school house, ten or twelve or more often to be consolidated into a school and involving quite apart from any racial considerations, a great deal of the busing mileage. That's true in Vermont or North Dakota as much as it is in North Carolina.
Julius LeVonne Chambers: That's correct Your Honor but one revealing fact in this record is that the school board had purposely located White schools, so that they would require transportation, they were away from Black neighborhoods and as I indicated among the goal of the 23,000 students transported, only 541 were Black. So the schools were purposely located, so that 23,000 students being transported would be in the county and majority White. We would like to show the court another exhibit that we prepared from the map of the school board, showing that there is basically no difference between the plan proposed by the board and that ordered by the court for the junior high schools. This is a map prepared by the board for the junior high schools limited the zones to contiguous grids within the map. They resulted in odd shaped district zones as the District Court noted. The map prepared by the court consultant which the school board elected to implement --
Potter Stewart: Please that one Mr. Chambers, that was the school board's plan as of when?
Julius LeVonne Chambers: As of February 2nd 1970.
Potter Stewart: And that -- again, please correct me if I'm wrong, that as I understand it involves some, what one might call benevolent racial gerrymandering, am I wrong about that?
Julius LeVonne Chambers: That's correct, yes. And it resulted in junior high school remaining 90% Black and that's Piedmont Junior High School which is in the inner city. The court offered the board four alternatives in order to desegregate that school. The court said that the board could rezone Piedmont District, it could close Piedmont School, it could pirate or it could adopt the plan proposed by the court consultant. The court consultant proposed the plan that to establish satellite districts, non-satellite districts were established for the junior high school and the colors on the map show that the school district that the satellite has been established for, the blue school district in the center for instance, is set up to be satellite to Eastway Junior High School.
Potter Stewart: And does the satellite -- the satellite involves one way busing or other form of transportation?
Julius LeVonne Chambers: That's correct Your Honor.
Potter Stewart: And only one way?
Julius LeVonne Chambers: And only one way. But I should point out however that in the zone lines that were retained under the court consultant plan, some White students are being transported into the formerly all Black junior high school, and JT Williams is an example. In order to desegregate JT Williams School which is in the intercity, the school board had to carry its lines out into the county to get some White residents to bring them into JT William School. But the satellite districts that were established by the court consultant involved only one way busing, that's Black students being transported out to --
Potter Stewart: Outwardly.
Julius LeVonne Chambers: Alright. These (Inaudible) White schools. And to show the similarity between the plans of the core consultant and the school board, we have a diagram here of Eastway Junior High School, and as I mentioned the Intercity Blue Satellite is satellite to Eastway Junior High School. It's shown there on the diagram in Black, the red zone, the red lines show the zones for the Junior High School of the board. The Black shows the satellite district and the school that the satellite district serves. The Smith Junior High School is another example. The Black again shows the satellite district and the satellite school. The red zone is a line for -- that was proposed by the school board.
Potter Stewart: Now in the satellite district was there also a school building?
Julius LeVonne Chambers: In some areas, the students were previously assigned to either Northwest Junior High School, an all Black school or Piedmont Junior High School or JT Williams.
Potter Stewart: When there is a satellite district and this really – I didn't get the definition of terms, I thought that the --
Julius LeVonne Chambers: The satellite --
Potter Stewart: That involved one way busing to -- outwardly to -- usually outwardly in Charlotte to a school, from an area where there was no longer a school.
Julius LeVonne Chambers: The way the satellite districts are proposed here, no Junior High School is in the satellite area.
Potter Stewart: Anymore, at least?
Julius LeVonne Chambers: Anymore. Correct. The other example that we have is Cochrane Junior High School in AG -- Alexander Graham Junior High School. Again, the satellite districts are shown in black and the board's plan is shown in red. The one --
Thurgood Marshall: Would you mind defining a satellite.
Julius LeVonne Chambers: Satellite, Your Honor is a non-contiguous zone established to serve a school district. For instance, the satellite district here would be the black zone, which is not contiguous to the black zones around Cochrane Junior High School. As the court point out in this opinion also, the efforts of the school board to use contiguous grids, ignore the traffic arteries. The grid zones that the board sought to adhere to ran diagonally to the traffic. Both the superintendent of schools and the core consultant said that the plan directed by the court, or the core consultant plan would be much easier to implement.
Warren E. Burger: Was that because the plan, the second plan took the flow of traffic into account more realistically?
Julius LeVonne Chambers: That's correct Your Honor. And --
Warren E. Burger: And did this significantly shorten the travel time?
Julius LeVonne Chambers: It shortened the traffic time and it was also easier to implement because we had the traffic arteries that were considered by the core consultant in proposing the satellite districts.
Warren E. Burger: But it did shorten the traffic time significantly?
Julius LeVonne Chambers: Yes Your Honor because the satellite districts used the traffic arteries where the zone lines, the contiguous zones did not. Some students, for instance, in the (Inaudible) proposed by the board would not even be on a street that could be serviceable for the school to which the students were assigned. This is equally true of the elementary schools. The board proposed again to adhere to contiguous zones. It also proposed to limit the schools that White students could be assigned to, to schools having 60% or more White students. The plan proposed by the board would leave nine elementary schools, 90% or more Black. The plan proposed by the core consultant did not limit itself to contiguous zones. The core consultant clustered ten Black elementary schools, with 24 White elementary schools. Again, the core consultant was utilizing devices that had been used by the board to preserve the segregated system. The core consultant stated that the clustered schools were purposely arranged along arterial routes, so that the students could easily be transported to the schools.
Potter Stewart: Could you say in a few words what clustering means, I should interject maybe that I think Bouvier is going to have to get out a new edition of his dictionary, in at least --
Julius LeVonne Chambers: Your Honor --
Potter Stewart: -- comparing and clustering in satellites and these new terms.
Julius LeVonne Chambers: Comparing has been used to describe the consolidation of two schools.
Potter Stewart: Yes, with two-way movement.
Julius LeVonne Chambers: With two way movement.
Potter Stewart: And what is clustering, (Voice Overlap)?
Julius LeVonne Chambers: Clustering means the pairing of one might use that were a grouping of three or more schools.
Potter Stewart: But usually what you do is enlarge your zone around three or more -- two or more school buildings, isn't that about it?
Julius LeVonne Chambers: Well, it's possible Your Honor, or you might use the school district that is not contiguous with the school district that is the -- as used in the question.
Potter Stewart: I thought that then would be pairing rather than clustering, if they're non-contiguous?
Julius LeVonne Chambers: No, we're talking about numbers of schools for pairing, and we're talking about an increased number of schools for clustering. In the plan here for instance that was proposed by the core consultant, the color show the schools that are clustered. For instance, the blue cluster in the intercity is Lincoln High School, and it's clustered -- Lincoln High School. And it's clustered with Mary Oaks and 8 Mile Road (ph) and Ottawa School. So we have --
Warren E. Burger: And you have three areas in the cluster?
Julius LeVonne Chambers: That's correct Your Honor. We have three -- well the three White Schools clustered with one Black School.
Warren E. Burger: Yeah. But I'm speaking now just to geography, when you speak of cluster, you mean three or more?
Julius LeVonne Chambers: That's correct Your Honor.
Warren E. Burger: Are any of these more than three?
Julius LeVonne Chambers: They are all either two White and one Black or three White and one Black school. I don't think either one involves more than three White schools. Another example of the cluster is the University Park Elementary School which is clustered with Ray Marold (ph) and Montclair Elementary School and they are shown in red. And as the core consultant stated, these schools are all arranged on traffic arteries, so that the students can be easily transported to and from the elementary schools, and the cluster is taking consideration of the size of the schools.
Potter Stewart: The pairing involves by definition always only two schools, is that --?
Julius LeVonne Chambers: That's the way we have been using the term.
Potter Stewart: And two way movement?
Julius LeVonne Chambers: That's correct Your Honor.
Potter Stewart: And non-contiguous?
Julius LeVonne Chambers: Well, they can be contiguous.
Potter Stewart: They can be, yeah, I see.
Warren E. Burger: Let's go back for a moment to that last clustering that you were describing which is colored in red on your map and approximately it's a triangle. What's the distance between the outer perimeter of those triangles approximately?
Julius LeVonne Chambers: You mean from school to school, or from the outer limits of the perimeter.
Warren E. Burger: From the outer perimeter of one to the outer perimeter of the other.
Julius LeVonne Chambers: Your Honor according to the information supplied by the board, at the February -- at the July 1970 hearing, the longest distance in any of the clusters would be 12 miles.
Warren E. Burger: And the schools are not necessarily located at the outer edge of the perimeter?
Julius LeVonne Chambers: That's correct but the board was measuring from the outer edge of the boundary to the outer edge of the boundary of the school that was involved.
Warren E. Burger: What's the maximum distance between schools in that particular instance of the red cluster?
Julius LeVonne Chambers: I don't have the maximum distance from school to school in that cluster.
Warren E. Burger: Of necessity, it's less than 12 miles.
Julius LeVonne Chambers: It's less than 12 miles. And in addition Your Honor, the court found that the average distance that the student would be transported in all of the clusters would be seven miles. And it would take 35 minutes, and this is far less than the average of the students that are being transported in the system today or in 1969-70.
Thurgood Marshall: What is the maximum mileage? Pupils who were transported in buses, (Inaudible) --
Julius LeVonne Chambers: Your Honor the court found that the average mile --
Thurgood Marshall: I'm talking about what is the maximum?
Julius LeVonne Chambers: I don't have the actual maximum distance, but one of the exhibits that we produce show that some students transported as much as three -and-a-half hours, one way.
Thurgood Marshall: Three-and-a-half what?
Julius LeVonne Chambers: Hours.
Thurgood Marshall: Hours?
Julius LeVonne Chambers: Yes. One way.
Thurgood Marshall: What was the mileage?
Julius LeVonne Chambers: I don't know the mileage of that Your Honor, as shown on an exhibit that was produced that the --
Thurgood Marshall: 90 miles or something like that?
Julius LeVonne Chambers: I think it would be less than 90 miles.
Thurgood Marshall: Three hours.
Julius LeVonne Chambers: I don't know the exact mileage that was involved in that but --
Thurgood Marshall: What is the maximum mileage under the recent order of the court?
Julius LeVonne Chambers: Within the schools affected, the maximum mileage according to the information supplied by the board was 12.5 miles.
Thurgood Marshall: That's the maximum now?
Julius LeVonne Chambers: Yes sir. Well, I don't know about the other 23,000 students. The plan that was directed by the District Court did not affect the majority of the 23,000 students who were previously transferred or transported. They were in the areas, that are marked in white or they have not been colored. The plan that the District Court ordered for the elementary schools particularly, involved only the colored zones. The core consultant used the zones for the other schools that were not involved in clusters.
Thurgood Marshall: I'm not talking about cluster, I'm just talking about under this order, under the operations of a school before this order was entered, do you have the maximum mileage in miles and not in hours?
Julius LeVonne Chambers: I do not have before me Your Honor, the maximum miles that students were transported previously. The longest distance -- it is in an exhibit that we introduced at the March 1970 hearing. It's the same exhibit that shows that the students were transported. Some students were transported three hours and a half.
Thurgood Marshall: What's the difference in the mileage, maximum mileage in the old order and in this order?
Julius LeVonne Chambers: Your Honor I can't say the maximum difference between the old and the new because I don't know the maximum distance previously. What I'm saying is that the average previously was 15 -- was 17 miles. The average under the order directed by the District Court is seven miles. I don't know the longest mile previously but the longest mile under the plan directed by the District Court, was 12.5 miles.
Thurgood Marshall: It seemed to me like the point of the most interest would be the maximum mileage rather than the average mileage.
Julius LeVonne Chambers: Well Your Honor as the District Court found, the students involved in the plan directed by the court were being transported less distance and at less time than previously existed in the system. Now, we do not have or I don't have today the longest distance that was involved under the old plan.
Speaker: (Inaudible)
Julius LeVonne Chambers: We will be glad to supply the court with it.
Speaker: Alright.
Warren E. Burger: It is in the record?
Julius LeVonne Chambers: It is in the record.
Byron R. White: Now, Mr. Chambers at some point before you sit down, I wonder whether you could summarize precisely as you can the legal issues that you think must be decided by the court in this case.
Julius LeVonne Chambers: Your Honor I think that the issue or basic issue involved is whether a school board can continue to perpetuate segregated schools, where these schools have been created by state practices or state action. When a feasible plan is available to disestablish the segregated schools. Basically, the Fourth Circuit has said in its reasonableness test, that some schools can be maintained segregated in a unitary system. We submit that they cannot be. We submit that on the facts of this case, there is a feasible plan that will desegregate the schools, and that the District Court was properly correct in saying that all Black schools or racially identifiable Black Schools in this system should be eliminated.
Potter Stewart: That is from the point of view of students.
Julius LeVonne Chambers: From the point of view of students.
Potter Stewart: There's no question about or am I -- do I understand there is no question about faculty in this case.
Julius LeVonne Chambers: That's correct Your Honor.
Potter Stewart: There is no single racially identifiable faculty under --
Julius LeVonne Chambers: Under the plan directed --
Potter Stewart: Under your definition.
Julius LeVonne Chambers: That's correct Your Honor.
Potter Stewart: That there is no issue here about transfers from majority to minority, for anyone who wants the transfer?
Julius LeVonne Chambers: No Your Honor, there isn't. We contend and submit that that provision or that kind of a provision will not satisfy the board's requirement to desegregate the schools. It is a provision that the Government advocate should be included on the plan, where segregated schools are retained.
Potter Stewart: Wasn't it in the board's plan?
Julius LeVonne Chambers: It was on the board's plan too. But the Court of Appeals pointed out that the board had imposed limitations on the majority to minority transfer which the Court of Appeals found to be unacceptable. We think that under the plan that the District Court has directed that we can eliminate all Black and racially identifiable Black Schools.
Harry A. Blackmun: Mr. Chambers, what is the situation there, do Blacks object to this plan?
Julius LeVonne Chambers: Your Honor, it's my understanding that Blacks are interested in the plan being implemented. I represent --
Harry A. Blackmun: I take it though that the plan would -- under the court's order, the plan wouldn't let Blacks opt out of the plan. If they prefer to stay in a Black School, they would not be permitted to do so.
Julius LeVonne Chambers: That's correct Your Honor. Your Honor under the plan directed, there wouldn't be any Black Schools.
Harry A. Blackmun: Yes. Well, what if they wanted to opt out of a (Inaudible) and stay in their school?
Julius LeVonne Chambers: They will not be permitted to do that under the plan.
Harry A. Blackmun: What's your answer to the arguments that you find in the briefs that this is just reversed discrimination in the sense that some Blacks are kept out of their schools and sent to other schools because they're Black and some Whites are kept out of schools because they're Whites, sent to other schools because they're White.
Julius LeVonne Chambers: Your Honor I think that this Court has answered that question several times.
Harry A. Blackmun: What's your answer to it?
Julius LeVonne Chambers: My answer is the same as this Court that the --
Harry A. Blackmun: What is it, (Voice Overlap) --?
Julius LeVonne Chambers: That the school board and the court might legitimately consider race and has to consider race in order to desegregate a school system.
Speaker: What did the court say then?
Julius LeVonne Chambers: This Court has said that in Green. The school board cannot be neutral. It has created a segregated system and it has to now consider race to disestablish it. The Fourth Circuit has said it, said it in Weiner (ph) versus the Arlington School Board. There the school board had to consider race in order to desegregate and I think that it's absolutely necessary here that the court consider race to desegregating.
Speaker: My Brother Harlan suggested that you state some -- rather what the issues are, is there an issue here to carry out your view point as to whether a court has power, constitutional power and required by the constitution to force a state to bus students to schools and to pay for new buses?
Julius LeVonne Chambers: Your Honor, I think that the constitution requires that school boards disestablish or dismantle segregated schools that they have created.
Speaker: I understand that. (Voice Overlap) --
Julius LeVonne Chambers: And I think as a matter of an equitable remedy, that the court can utilize devices that have been used by school officials to create a segregated system. I think further that the school board and the court are not limited to the same devices that have been used to create a segregated system but can go use other devices that are necessary to desegregate, if this requires busing and it has been in this system in the past -- busing has been used in the past to segregate, then the court can use busing in order to desegregate.
Thurgood Marshall: Then as I understand that your position is that to put your views in effect, the court would have to hold that the constitution requires busing under certain facts, and that the state can be compelled to buy buses, to do that busing.
Julius LeVonne Chambers: Your Honor I think --
Thurgood Marshall: By the court?
Julius LeVonne Chambers: I think that the rule would be a bit more general, that being that the court -- the board would have to use what means were necessary which would require --
Thurgood Marshall: I understand all of that means -- I'm talking about the concrete thing.
Julius LeVonne Chambers: If it would require busing, then I think that the constitution will require that the board utilize the facilities to do so, to desegregate.
Thurgood Marshall: In other words the courts could order states to buy a large number of buses in order to transport pupils and but be required to do so by the constitution.
Julius LeVonne Chambers: I think that the constitution requires -- I think that the court should require the school board to do what is necessary and I think the constitution requires that.
Thurgood Marshall: I understand all the abstract generalities about necessary. The question I'm interested in is, maybe it does at this time. Whether to carry out your view, what constitution compels a court, the United States can require schools and states to buy large numbers of buses, that tremendous expense to the state in order to transport pupils.
Julius LeVonne Chambers: Your Honor, may I answer that this way, first of all, I don't think the court has to go that far to affirm what the District Court did below. I think however, that as a constitutional matter it should be required.
Thurgood Marshall: In this particular case, how many extra buses?
Julius LeVonne Chambers: The District Court estimated, it would be 138 buses.
Thurgood Marshall: And the money was available?
Julius LeVonne Chambers: And money was available and in fact the court found below that no additional capital outlay was necessary in order to desegregate now.
Thurgood Marshall: How could you get 136 buses without any outlay of money?
Julius LeVonne Chambers: Your Honor the board has available over 107 buses which the District Court found, additionally the states had advised the board that it would loan buses to it which the board would have to replace either due on the school year or next year. And in fact that's what I understand has been done.
Warren E. Burger: You spoke Mr. Chambers of devices, various devices the court could use, I got an implication perhaps, erroneously that a device such as such as freedom of choice might in your view be impermissible, would that be your view of the matter?
Julius LeVonne Chambers: I'm not arguing that Your Honor. I think that it might be permissible under some circumstances.
Warren E. Burger: Green said that, (Voice Overlap)?
Julius LeVonne Chambers: Green said that.
Warren E. Burger: But is it, it depends on the judge the tool according to its efficacy.
Julius LeVonne Chambers: That's correct Your Honor.
Warren E. Burger: If it works, it's a good tool.
Julius LeVonne Chambers: That's correct Your Honor. That's correct. The test proposed by the Government and by the school board, we submit is unworkable and vague. 16 years of litigation have taught us that vague standards and test of good faith of school boards, merely prolong the day that Black children are able to enjoy equal educational opportunities. This is clearly demonstrated in the argument advanced by the school board. While advocating a reasonableness test, the board contends at the Fourth Circuit doesn't know how to apply its own test, because the Fourth Circuit was sustaining the District Court's order with respect to the junior and senior high schools. This is further demonstrated by the recent case considered by the Fourth Circuit only a few days after the Fourth Circuit had announced its new rule. This was a case in Clarendon County, where small school district contended that it could not desegregate the schools by using reasonable means. Secondly, the fact of this case do not warrant any standard as proposed or adopted by the Fourth Circuit. Again the facts are simple. We have a segregated system created by the state practices and we have at hands the means for desegregation. The school board concedes that if it is required to afford Black children in the system and equal educational opportunity then the plan directed by District Court is the one that should be followed. Mr. Wagner, my opposing counsel reaffirmed that position only recently, when it argued before the District Court during July 1970 hearing, stating, “So we take the position if the court please, that there is no reasonable alternative between the finger plan and the board plan.” The alternative suggested here or portions thereof are unreasonable and it was referring to the HEW plan. And this places the board and the plaintiffs in a difficult position of seeing a situation where an appellate court has ruled one plan doesn't go for enough and the other plan goes too far. We feel this is where the chips in this case fall, there is no middle ground. We note that the Government suggests that the same devices used to create a segregated system may be used to disestablishing. We agree and go further. Nothing limits this Court or the federal courts to these same devices. The court might use these or more or different ones or combinations. The school board, the government and now the amici, who have submitted briefs in this case, suggests any viable constitutional alternative. The board and the Government as we understand their positions, advocate that some non standard discretion be vested in the school boards to allow them to offer such desegregation as they deem feasible and to do so, when they think the time is appropriate. We do not think that the constitutional rights of Black children in this system should be left to the whims of what school board officials happen to be elected. The constitution would be a mere mockery if such were the case. Nor do we feel that the alleged preference for neighborhood schools, which would preserve racial segregation, is an acceptable premise upon which to deny constitutional rights to the children in the system. Our record demonstrates as does it -- does the record in Mobile, that neighborhood schools became prominent vogue only when school districts were being required to desegregate. Additionally, one cannot auger that there is any less neighborhood under the plan directed by the District Court in this case, than that proposed by the school board, and indeed by the Government. As we have shown, the only difference between the Junior High School plan directed by the District Court, and that proposed by the school board, is the board's connecting narrow links attempting to preserve its standard of contiguous grids. Even the alleged to preference of Government for a contiguous pairing or districts is equally illusory. For the contiguous pairing or districts for neighborhoods under the Government standard, does no more than link areas which are unconnected under the plan directed by the District Court. The clustered elementary zones under the District Court's plan merely live out of those clusters in between school districts that have already been desegregated. We'd like to show one other example of that. The map item number four shows the clusters proposed by HEW at the July hearing. One example of that cluster is zone number seven, which is colored in purple. It clusters Darida (ph) School, State Monroe (ph) School and Lincoln High School. Now using that cluster in the same distance --
Warren E. Burger: The layers in here is not all that good Mr. Chambers and Mr. Nabrit, is the pairing the one that runs right next to the orange area? The pairing of the small -- take the smaller --?
Julius LeVonne Chambers: The smaller district is Lincoln High that run down to this area.
Speaker: This is the same as this -- this is a tracing of it, the red outline.
Warren E. Burger: I see.
Julius LeVonne Chambers: Now this exhibit here shows the cluster proposed by Government in zone number seven and one of the clusters proposed by the core consultant. The core consultant's plan is in black. And the clusters of HEW are in red. One additional example of how the core consultant's plan leave out of the clusters integrated schools is the exhibit involving Marie Davis and Pinewood and Park Road School, which is shown here in green. A cluster proposed by HEW is shown here in the overlay in purple, involving basically these same schools, the HEW cluster would include Sedgefield and College Wood school which had been desegregated under the rezoning plan proposed by the board. It would additionally result in a predominantly Black cluster.
Speaker: Do you think the basis was for the Court of Appeals setting aside of the District Court's busing order?
Julius LeVonne Chambers: Your Honor I think that the Court of Appeals was attempting to establish a standard that would apply nationally. And I think that the Court of Appeals did not have sufficient facts before it at that time to adopt such a standard. I think that it set aside the District Court's plan with respect to elementary schools in order to see if some other plan could be devised that would involve less busing. I think that when that matter went back before the District Court, including the plans presented by the Government and the other plan presented by the minority of the board, the court found that the extent of busing involved in the February 5th order, would be basically the same as any other plan that required desegregation of the schools. The court found previously, the District Court that the school system could not be desegregated without busing students and continuing to bus students.
Speaker: The Court of Appeals did not say that busing was an impermissible tool?
Julius LeVonne Chambers: It did not Your Honor.
Potter Stewart: In fact it specifically approved busing with respect to the high schools.
Julius LeVonne Chambers: That's correct Your Honor. And in --
Potter Stewart: That was one way busing.
Julius LeVonne Chambers: That's all -- again Your Honor the high school and the junior high school involved two way busing, because some of the students involved in the zone areas, for the Black Junior High Schools and the former Black Senior High School where White students being transported into those formerly Black schools.
Speaker: And let me put another question to you which perhaps is related to this. What do you concede to be the difference between the green feasible test as I understand you call it and the Court of Appeals fields reasonableness test as the measure of the obligation to disestablish.
Julius LeVonne Chambers: Your Honor I think that the Court of Appeals reasonableness test begins with the premise, that some Black schools can remain in a unitary system, it is general, it has no standards, and it --
Speaker: Well, the green test could also contemplate that too or just prevent that much module, if it isn't feasible, is it -- if it isn't feasible to abolish every Black School, then they would permit that.
Julius LeVonne Chambers: I think Your Honor that the green test begins with the premise that schools should be desegregating, that there should be no Black or White Schools but just schools. I think this is the most important difference between the two tests. If we begin with the premise --
Speaker: (Voice Overlap) the Court of Appeals also at least should assume that premise?
Julius LeVonne Chambers: I do not think so Your Honor, I think that it begins with the premise that some -- all Black schools can remain.
Speaker: If what?
Julius LeVonne Chambers: If the school board uses “reasonable efforts to desegregate the school.” And I do not think that that is a test that can be applied uniformly and that will eliminate protracted litigation for students to obtain desegregated education. I think it's only -- as Judge Sobeloff stated, just another device that will invite protracted litigation and continued denial of constitutional rights.
Thurgood Marshall: Schools in North Carolina should conclude to do away with busing entirely have none in the state for the school, is it your argument or your view that that would be unconstitutional?
Julius LeVonne Chambers: Your Honor I would think it would depend on the circumstances whether the decision to discontinue transportation was racially motivated.
Thurgood Marshall: Well I'm just talking about the legislature or a state passing a law to that effect. Suppose they passed the law, abolish busing, beside not have busing in North Carolina, could that be an unconstitutional level?
Julius LeVonne Chambers: Your Honor I can't say at this time because I don't know the circumstances under which the legislature is acting.
Thurgood Marshall: Well, if it will be acting on this circumstances that the state didn't want to have busing in the public schools, is the question I asked.
Julius LeVonne Chambers: There might be circumstances under which the legislature could adopt such legislation. I think that in this case however, if the legislature were to adopt such legislation, solely to prevent desegregation of the schools that it would be within the power of the court to direct that the legislature continued with transportation.
Thurgood Marshall: So, it would be our duty to see whether their legislature had passed that law solely for that purpose?
Julius LeVonne Chambers: I think that would be one of the considerations of the court.
Speaker: So we got that problem to these cases –(Inaudible)
Julius LeVonne Chambers: That's correct Your Honor.
Speaker: Down in Mecklenburg.
Julius LeVonne Chambers: That's correct. Thank you very much.
Warren E. Burger: Mr. Solicitor General.
Erwin N. Griswold: May it please the court. It has been a long road, we've made substantial progress and this is evidenced by the fact that few today question the central rightness of the decision which was reached by this Court in Brown against the Board of Education 16 years ago. It's true that 16 years have passed, but in this connection that may be observed that the Brown case itself was twice argued in this Court, and before the initial decision, that it was pending here for two-and-a-half years before it was decided. It was also here in additional year or a total of three-and-a-half years when the case was set down for further argument with respect to remedy. For many years, there was a serious problem simply in getting the decision accepted. I need not recall Little Rock and Oxford in the confrontation at the University of Alabama. All of that is in the past now, and fortunately and wisely so. Because of this situation, the court has only recently had occasioned to consider the many problems of detail, which arise in the application of the Brown decision. On the basis of a careful survey, I find that there are 25 school cases which have been decided on the merits by this Court in the 16 years since Brown was decided. Many of these are per curiam decisions. One was Cooper and Aaron which arose out of the Little Rock situation. Other cases involved various aspects of so-called massive resistance and interposition, such as Bush against the Orleans Parish School Board. Then only six years ago, in Griffin against Prince Edward County, the court held the schools could not be closed while public money was meant to support private White only schools. During these years, many hundreds of cases were decided in lower federal courts and great determination and courage was shown there. Not until recently, however, has this Court had occasioned to focus on detailed aspects of the problem. At first in the Brown case, there was only the start question, whether legally enforced segregation was consistent with the constitution. This Court rightly held that it was not. The problem was inappropriately remitted to the school boards and the local courts to work out the details. As might be expected, it has been found to be a vastly complex problem. One can look at it first with a glass, and then with the microscope, and the complexities and the infinite variations soon appear. Actually, it has been only in the past few years that this Court has had occasion to deal with any of these matters of application in detail. For many years, school boards and the courts too, to a considerable extent had felt that compliance was reached under freedom of choice plans. It was only two years ago last May that the court held that freedom of choice plans alone were not adequate when they did not achieve a unitary school system. As for one reason or another, they almost never do. And it was only a year ago last June in the Montgomery County Board of education case that the court held for the first time, that a District Court could properly require allocation of White and Black faculty members in equal proportions to all schools. And there is nothing which more clearly marks a school as Black as that it has a wholly Black faculty. Now, we have another problem, in the application of the Brown decision, an extremely important and difficult problem. I think I can put the issue this way without too much over simplification. What is the standard to be applied, or the objective to be sought by a school board or by a court in reviewing what the school board has done is the standard or objective to achieve racial balance? Or on the other hand, is the standard or objective to disestablish a dual school system and to achieve a truly unitary system. Our position is that the latter is the correct formulation of the objective. We cannot find more in the constitutional command of Equal Protection of the laws or of Due Process of law which as far as I know, are the only constitutional provisions and likewise the most specific constitutional provisions involved in this case. Before going further, I would like to make it as plain as I can that this not a retreat. There must not be a retreat in this area, where so much has already been done to redeem the promise of America. I recognized too that determining what is truly a unitary school system may in actual cases present practical problems of very great difficulty. My central position is that there is not any basis for saying that this can only be achieved through racial balance. At this point, I would like to observe that counsel for the petitioners disclaim the phrase racial balance, both in their briefs and in the argument today, but I find a passage in a brief which was filed late last week. Actually it's in number 436, the Mobile case which will be argued tomorrow, this is a supplemental brief for the petitioners in Mobile on page three, where at the bottom of the page, the same counsel say, petitioners submit that Mobile's experience under the Fifth Circuit plan underscores and this is -- it seems to me, their statement of their contention. The necessity for the declaration of a constitutional standard that in a unitary school system No -- and that's in italics -- No -Black student may be assigned to a racially identifiable Black school at any grade level. And I'm quite willing to accept that and whenever I say racial balance that's what it means. I don't understand how it can be applied in the District of Columbia or in Mound Bayou Mississippi, and not to mention all kinds of intermediate situations. But getting back to the question as to what standard --
Potter Stewart: Mr. Solicitor General, do you read McMillan's opinion, Judge McMillan's opinion as having proceeded on the premise that the constitution required or disestablishment required racial balance in the proportional sense?
Erwin N. Griswold: Mr. Justice, I think he may have although again it is expressly disclaimed in the opinion but it seems to me that looking to what he did and the way he did it, and I certainly have a great understanding and sympathy for the problem with which he was confronted, that he may well have acted on the assumption that he was required to produce what I have called racial balance or what is the defined as no student may be assigned to a racially identifiable school. If he did, then I think that he ought to be required to act in accordance with the proper standard, in any event as I will conclude, it seems to me that we've come to the place where this Court must define what the standard is and Judge McMillan and other courts can then proceed in the light of that standard.
Warren E. Burger: And what is the definition that you use for a racially identifiable school? Do you accept, I believe Mr. Chambers' definition that perhaps more than 10%, more than a variation from the 90-10?
Erwin N. Griswold: I think that Mr. Chambers said more than 51% made it identifiable as a Black school. I think it is --
Warren E. Burger: But somewhere perhaps it was in one of the opinions. Is the standard that if it has less than 10% Whites, it's all Black, all Negro?
Erwin N. Griswold: I think really the issue here is, if whether there can be any all Black Schools in the -- on the facts of these particular cases.
Speaker: Well that's the precise issue or at least one of them in the Mobile case. It isn't really the precise issue here, is it?
Erwin N. Griswold: Well, it would be the same in the Charlotte case. There were two all Black Schools left under the HEW plan which was rejected by the District Court and it's largely because of that rejection that I conclude that there is a possibility that the judge acted on the assumption that he must produce a racial balance.
Potter Stewart: At least to the extent of the quotation that you've just read.
Erwin N. Griswold: Yes, Mr. Justice.
Warren E. Burger: Well then this 10% suggestion that appears in some of the papers and some of the cases now, addressing myself to general and broad propositions, is that anything 10% or less is mere tokenism, do you accept that concept?
Erwin N. Griswold: No Mr. Justice, I think it depends entirely on the circumstances and it seems to me that in proper circumstances, and they maybe hard to find, but a 100% Black is -- meets the constitutional requirement. That is the position that I'm taking here.
Thurgood Marshall: Mr. Solicitor General, do you agree though there is no Black school and it's feasible or possible to desegregate it, that's alright?
Erwin N. Griswold: Mr. Justice it certainly is alright. There is no question about the power of the school boards and as far as I am concerned, the great importance of the school board should find ways to exercise that power in the meantime to improve facilities and programs there until they can get it brought about and to bring about activities through public housing programs and many other programs to minimize it.
Thurgood Marshall: The Government ought to have housing programs, anything else. If the boards refuses to do it, what is wrong with the District Court doing it?
Erwin N. Griswold: Mr. Justice it seems to me that it gets back to the question I have put, what is the objective? Is the objective to eliminate racial balance? Is to provide racial balance or is the objective to disestablish a dual school system and establish a unitary school system.
Thurgood Marshall: I would respectfully submit, it might be the duty to see that each Black child gets a desegregated education.
Erwin N. Griswold: Yes, Mr. Justice I can understand that position and that is the argument of Mr. Chambers, I cannot find that in the constitution. The constitution says, “Nor shall any state deprive any person of the Equal Protection of the laws.” With respect to the District of Columbia, the only applicable provision is the Due Process Clause.
Thurgood Marshall: I respectfully --
Erwin N. Griswold: And if there is no affirmative state action which produces or requires the isolation or the separation, I cannot find in the constitution any requirement that it'd be disestablished.
Thurgood Marshall: Well do you agree that the busing of the White children in Charlotte brought about desegregated schools?
Erwin N. Griswold: Mr. Justice there is a great deal of state action in the background in Charlotte and that of course is an important reason and for that reason the Government has filed a brief and the following case in which we contend that the -- which we join in the contention that the North Carolina statute abolishing busing is unconstitutional.
Thurgood Marshall: What is an individual right that each child gets and do you agree that the school board could do it, if they wanted to?
Erwin N. Griswold: Yes Mr. Justice and Congress could do it, if they wanted to. Congress in my view, --
Thurgood Marshall: But the court --
Erwin N. Griswold: -- That's not an issue that's here but by legislation enacted under the fourth section of the Fourteenth Amendment, I believe that Congress could require that racial balance be established in all schools. Some states have done it, and Massachusetts had the statute to that effect and New York has a regulation of the state commission of education which points in that direction. It surely is an objective, my position is that it is not a requirement which can properly be found to be in the Fourteenth Amendment standing alone.
Potter Stewart: Mr. Solicitor General are we talking here about as you seem to be now and in the colloquy with my Brother Marshall, about the substantive right that the Fourteenth Amendment confers upon a public school student, Negro or White or are we talking about the appropriate remedy for the disestablishment of a concededly unconstitutional school system, they're different, aren't they?
Erwin N. Griswold: Yes Mr. Justice but they're intertwined.(Voice Overlap) --
Potter Stewart: They are but the -- if there is a right such as an absolute constitutional right such as it was suggested by my Brother Marshall and such as suggested by the language you read from the brief in the other case, then I suppose that right exists everywhere in United States in every system --
Erwin N. Griswold: And the --
Potter Stewart: Where it's humanly possible to do it unless you have an all White school population or an all Negro school population where of course you can't have any schools that are not all White or all Negro, but if they're to exist, that substantive constitutional right, that each individual public school student has, that same one thing, but if we're talking about what's open to a court to -- or what is required of the court, to disestablish a concededly unconstitutional system, we're talking about something else and something at least of a more limited perhaps, perhaps at least a more limited geographic scope, if it's not more limited in other ways, aren't we?
Erwin N. Griswold: Well they are different --
Potter Stewart: They are interrelated but they are different also.
Erwin N. Griswold: They are different questions but I would find it difficult to contend that if the right was established, that the remedy could not be devised to protect the right.
Potter Stewart: Well, our point is, if there is such an absolute substantive constitutional right, then that right exists in Chicago or in North Dakota or Cincinnati or Detroit as well as in Charlotte?
Erwin N. Griswold: Yes Mr. Justice. There's nothing new in the position which I am taking. Actually it seems to me this is an example of the tendency of many points in the law to expand themselves to their logical extreme. It's clear I think that with the success which has so far been achieved, and it is considerable, though in many places not enough, there has been an expansion of rising expectations. Specifically, I think it is clear that racial balance was not regarded as the objective. And I'm using racial balance in the sense of the brief from which I have quoted. Racial balance was not regarded as the objective when the Brown case was presented before this Court, or when it was decided. In the Brown case, the United States submitted three separate briefs for the court's consideration. One was filed on December 3, 1952, and was signed by Attorney General McGranery and Philip Elman. The next brief was filed in connection with the re-argument of the cases. And was filed on November 27, 1953, it was signed by Attorney General Brownell and by Assistant Attorney General J. Lee Rankin and by others. And finally, a brief for the United States was filed in connection with the further argument on questions of relief, and this was filed on November 24, 1954. It was signed by Attorney General Brownell, Solicitor General Sobeloff, Assistant Attorney General Rankin and others. The position of the United States was the same in all of these briefs. I think that all are relevant, but I will quote only two passages. The first in the brief filed on the first re-argument, on November 27, 1953, and this appears on page 171 of that brief. It is not unlikely that in many communities particularly where separate White and colored residential districts still exist, abolition of segregation would produce no serious dislocations and no wholesale transfers of teachers or pupils would occur. This could result from purely geographical factors because the pupils of a school ordinarily reflect the composition of the population of the district in which it is located. And then in the brief of the United States filed in connection with the further argument on the question of relief, we found the following on page 12. There's more along the same lines here, I have only picked up the central passage. The extent of the boundary alterations required in the reformulation of school attendants areas on a non-racial basis will vary. This is illustrated by the recent experience in the District of Columbia, in recasting attendant's boundaries on a wholly geographical basis. In the neighborhoods where there is little or no mixtures of races and where school facilities had been fully utilized, it was found that the elimination of the racial factor did not work any material change in the territory served by each school. And by a racial neighborhoods however, the objective of securing maximum utilization of facilities on a non-racial basis, could be achieved only by making radical revisions in the area covered by the formerly Negro and White schools.
Warren E. Burger: Mr. Solicitor General after lunch, it'd be helpful to me if you would suggest, if you will, whether the feasibility test to Green and the reasonableness test of the Fourth Circuit are different and if so in what respects? I'll give you the lunch hour to formulate some ideas on that. Mr. Solicitor General you may continue.
Erwin N. Griswold: Before I proceed to the Chief Justices' question, I would like to finish the theme of the argument which I was pursuing when the court recessed. I had just quoted from the briefs filed by the Government, 15 and 16 years ago, I think it is relevant to bear in mind that --
Hugo L. Black: Which argument was that, the first or the second?
Erwin N. Griswold: This was in the second and the third argument Mr. Justice, those briefs I quoted from. But in connection with the second argument and also the third argument, the court propounded specific questions to counsel, these appear in 347 U.S. at pages 495 and 496, and 4 (a) was this was the question of the court at that time. Assuming it is decided that segregation in public schools violates the Fourteenth Amendment, (a) would a decree necessarily follow providing that within the limits set by normal geographic school districting, Negro children should forth with be admitted to schools of their choice. It's perfectly plain that the court there was contemplating limits set by normal geographic school districting. Now the oral arguments of all three of those cases have been printed in a book called Argument, and if they are examined, it is found that counsel for the petitioners there proceeded on the same basis, that the contention was not in favor of racial balance or the new formulation of that which appears in the present brief, but was in terms of eliminating a dual school system. And then finally, in the opinion of the court, in the -- in Brown too in 349 U.S., I think we find recognition of this understanding of the court and this appears in the opinion to that end, the courts may consider problems related to administration arising from the physical condition of the school plan, the school transportation system, personnel and here is the important passage, “Revision of school districts and attendant's areas into compact units, to achieve a system of determining admission to the public schools on a non-racial basis. It's apparent I think that 16 years ago, when Brown was decided and 15 years ago on the decision on remedies was announced. The objective was not racial balance and or the related objective is stated in the petitioner's reply brief. The conception of racial balance is something rather new, and it has a reason out of our experience in the intervening years. I think there is much to be said for racial balance in many situations. But my submission is that it was not thought to be the standard or objective when Brown case was considered or decided, and I do not think that it can today be properly found within the text or within the appropriate penumbra of the two constitutional provisions which are applicable in this case. Certainly this Court has never so decided. Now with respect to the question of the Chief Justice, if the court will examine our brief with great care, you will find that we have never contended, we have never used the word reasonable. We have used it when we quoted from opinions, but we have never used the work reasonable. The word which we have used is feasible. And how far that is different from reasonable? Is perhaps a question, I think it is some different and I will refer to it, one of the chief reasons we have used feasible is because that is what the court used in the Green opinion. Where the court said that it was incumbent for the federal courts to assess the school boards proposals under the orders of the court in light of the facts at hand, and in light of any alternatives which maybe shown as feasible and more promising in their effectiveness. Now I think that feasible is a stronger word than reasonable. Reasonable is a somewhat negative word. Oh! Well you don't have to do that because it would be reasonable, whereas to me feasible has a strong affirmative connotation, you must do it if you can. You must do it if it is feasible. Feasible means practicable. I would point out that even the petitioner's have some qualification in their statement of the situation, perhaps that appears best in their brief in the Mobile case on page 75, their phrase is, “absolute unworkability” now that is certainly vastly stronger than feasible but even that shows that there are circumstances where they can see that that doesn't have to be done. Their wording is, “We believe that our proposed principle, forbidding relocation of pupils to Black schools except in cases of absolute unworkability of integration plans, has a number of merits.” Now we believe that under the test of feasibility, which we contend for, that there is a strong governmental obligation. An obligation not only on the courts but also on the school boards, to -- not only to disestablish a dual school system, but to eliminate the vestiges of a dual school system, and here there is no doubt that there was a dual school system, we're really down to 1965 maybe a completely dual school system down to 1965 in Charlotte. In Mobile down to 1969 and that much of the present picture is a vestige of the situation which arose at that time. And we believe that there is a very strong obligation on the school boards and the courts to eliminate not only the dual school system but the vestiges of the dual school system. In that connection I would point out some things to which reference has not been made, steps have now been taken in Charlotte to provide for adjustment of faculties, so that they are no longer are White faculties or Black faculties in any school. Under the orders of the court, which we support segregation and busing, has been eliminated and finally there is even with respect to these children in the all Black schools who would be left in the two all Black schools under the HEW plan, there is free majority to minority election of, so that any Black student who wishes to go to a school which is not all Black, I know all the problems of that but still the fact is, that he can go to another school under the government's plan, it was not included under Judge McMillan's plan because he left no all Black schools. But under the Mobile order of the Court of Appeals, such children must be provided with busing and they are given a priority in the school to which they go, they cannot be told, “You cannot go to that school because it is already overcrowded.”
Speaker: You do not contend I take it that busing as such as an impermissible remedial measure?
Erwin N. Griswold: No, Mr. Justice it becomes a question only with the amount and the distance of the busing, and there is one last point I would like to make which is relevant there. There are no problems in the Charlotte as far as the government is concerned with respect to high schools and junior high schools. We have supported throughout the decision of the court which leaves no all Black high schools and junior high schools and requires a substantial amount of busing. The problem arises exclusively with respect to elementary schools and that becomes relevant with respect to this question of feasibility. You're dealing with very small children and the distances of busing are relevant. The taking away from their home areas are relevant. I know that in countywide consolidated schools, small children are bused to ong ways but there you have the question of feasibility on the other side. The all one room school house no longer became feasible and the only way it could be handled in an obvious improvement was to take the children in to the centralized school. So, in many ways the word should close together, but we feel there's something much stronger than merely reasonable action as required. The word we have found to use is feasible but that might well be backed up with further language to the effect that this is not meant in the passive way. It is meant in an active way, and that in particular where there are vestiges of a dual school system, continuing steps must be taken to eliminate those vestiges but that finally, the test, the standard is not whether when you get sued doing all that is feasible, there remains one or more all Black schools.
Harry A. Blackmun: Mr. Solicitor General could I ask you, let's assume a school district or school system where there has not been a dual system, and there is no proof of any official discrimination and pupil assignments or building schools or anything else. From what you said a while ago, I take it that the school board on its own, well, and also let's assume that in this system there are some all Black schools and some all White schools. I take it from what you said that the school board on its own could to achieve -- you think that to achieve educational goals, adopt the plan which would redraw attendant zones, fare, bus in order to make sure the Blacks and Whites were going to school together.
Erwin N. Griswold: Yes Mr. Justice, of course.
Harry A. Blackmun: Even though that was a -- even though those assignments were made explicitly on the basis of race.
Erwin N. Griswold: Even though those assignments were made explicitly by taking race into account.
Harry A. Blackmun: Right. Now you would say the constitution permits the board to do that?
Erwin N. Griswold: Yes Mr. Justice.
Harry A. Blackmun: Now I take it however much you said that a while ago about the necessity or a state action and discrimination that absent that, their constitution wouldn't require the board to do that, in a zone, in a district like I described.
Erwin N. Griswold: Absent that or absent any action by a congress under section four of the Fourteenth Amendment which I think could also make this as a requirement, or state statutes as in Massachusetts, but assuming that there is a school zone whether there is no vestige of prior discrimination, then I think that put it a nutshell, our position is that there is nothing in the constitution which requires the elimination of all Black or all White schools.
Harry A. Blackmun: Then I take it that your argument is that in the Charlotte case, and in the Mobile case, it's the necessity to disestablish, the necessity to provide an adequate remedy for official discrimination that would permit or that is the basis for saying the constitution requires gerrymandering zones, pairing, busing or any of these other devices to make sure that Blacks and Whites are going to school together.
Erwin N. Griswold: Yes Mr. Justice. There are number of these devices which have been developed. We have a --
Harry A. Blackmun: Yes, well, I understand but whatever they are, nevertheless their justification, the fact that the constitution requires them is based on the -- or the position that the constitution requires them is that -- is based on past official discretion.
Erwin N. Griswold: Because here we have what clearly was a dual school system and which clearly has substantial vestiges of a dual school system and a great deal of the existing allocation of students is the immediate consequence of the way the school system was operated in the past.
Harry A. Blackmun: And even though and possibly in this district like in other districts across the country, there might have been all Black and all White schools even though there had never been any official discrimination. It's awfully hard to tell whether there would have been or not or where they might have been.
Erwin N. Griswold: It's very hard to tell, and our position is that under the HEW plan in this case, all that was feasible would have been done leaving to all Black schools. And the Judge went somewhat further in order to eliminate those two --
Speaker: Does your argument then come down in light of what you said to proposition that Judge McMillan abused his discretion in doing what he did?
Erwin N. Griswold: Mr. Justice we have put it on a conditional basis in our brief. It seems to us it depends upon what standard Judge McMillan used or what objective he sought to reach. If he felt that he was required to eliminate all Black schools, we think he used the wrong standard. Or putting it in another way, if he felt that he was required to meet a test of racial balance in all schools, we think he used the wrong standard. If on the other hand, he didn't seek that objective, if all he was trying to do is to disestablish a dual school system including the consequences of past discrimination, then we think that the result was within the limits of his discretion.
Potter Stewart: Mr. Solicitor General do you suppose there are many school districts in the whole United States, east or west, north or south that don't show the vestiges of prior discrimination at least when you include some of the elements that are included here, such as the enforcement of restrictive residential covenants arrived at Shelley against Kraemer or the building of school buildings by school boards to meet the demands of the children in those areas?
Erwin N. Griswold: Well not all.
Potter Stewart: I wonder if there's a single school district in the United States (Voice Overlap) --
Erwin N. Griswold: I think Mr. Justice that -- as counsel on my left will say that when those cases come, they will build a record and I have no doubt that they can show a good deal. I think in many parts of the north, they couldn't show racial zoning for example, which existed in the Charlotte case, racial restricted covenants probably have been utilized in a great many places, and the decisions of school boards and of housing authorities and where to place a housing projects and where to build schools are probably there. And all I would say is that where it can be shown that existing discrimination is in part a consequence of past discriminatory decisions made by public officials, that there seems to me to be a situation where under the Fourteenth Amendment a court can properly intervene and (Voice Overlap) --
Potter Stewart: My question was simply prompted by the -- you suggest that your argument is quite limited to implicitly few situations but my question was suggesting (Voice Overlap) --
Erwin N. Griswold: No Mr. Justice these are all questions of degree. In Mobile, I suppose we have it in the degree in the highest intensity and Charlotte somewhat less, I suppose in northern cities, you can find quite a bit but still a great deal less. In particular there never has been a dual school system as such. There never have been -- well --
Potter Stewart: How sure are we of that, I mean talking about a hundred years ago?
Erwin N. Griswold: In the areas in which I am familiar, there have not been overlapping attendant zones which is what I mean by dual school system.
Speaker: Mr. Solicitor General, did I correctly understand you to say that there is a reading of what Judge McMillan did. There is a reading of what he did and what he said in these opinions under which it would be consistent with the Government's position for us to affirm him.
Erwin N. Griswold: I think Mr. Justice, it ought to be remanded to him to find out whether he felt that he was applying the standard that he had to eliminate all Black Schools. I think what the court should do is to establish what is the proper test or standard here and then remand these cases to the lower courts for the application of that standard. If in the light of that standard, Judge McMillan should still come out with the same remedy, I would think there would be much to be said in support of his decision.
Potter Stewart: (Inaudible)
Erwin N. Griswold: Mr. Justice because it seems to me that it all turns on what his standard or his objective was. If he felt that his requirement was that he eliminate all Black schools, he said, “I can do that and it's feasible.”
Potter Stewart: If it's feasible.
Erwin N. Griswold: No, he said, “I can do it and it is feasible.”
Potter Stewart: Well --
Erwin N. Griswold: But if the requirement is not to eliminate all Black schools, if the requirement on the contrary is to disestablish a dual school system and to establish a unitary school system, he need not have required as much as he did require to achieve that other standard which is the standard that we think is all that can be found in the constitution.
Warren E. Burger: I read your remand suggestion -- I read it, I understood that as you articulated it here, the remand suggestion to Judge McMillan has meaning that perhaps it was an error if he acted on the assumption that he must achieve a fixed racial balance.
Erwin N. Griswold: Yes Mr. Justice.
Warren E. Burger: And that he must eliminate all Blacks and all White school.
Erwin N. Griswold: Yes. Mr. Justice. We think that perhaps he was in error.
Warren E. Burger: Thank you Mr. Solicitor General. Mr. Nabrit I -- excuse me, Mr. Waggoner is going to be next.
William J. Wagonner: Mr. Chief Justice, may it please the Court. The record in this case is voluminous as evidenced by the small portion of the record that's been printed and presented to the court. And although the record is substantial, we think that there are some crucial issues which may be simply stated. And the first one is, is racial balance a constitutional imperative? This has been discussed. We think that if racial balance is a requirement then there is no need to have plans. All the school board need do is simply report to the court we have achieved a racial balance. I think it would end the inquiry of the court with reference to what plan, what means you're using.
Potter Stewart: Now what do you mean when you use the phrase racial balance? It seems to have different content in the words of --
William J. Wagonner: Pure racial balance, if you went to the limit of it, I would say would be that you would have 7129.
Potter Stewart: In each school building?
William J. Wagonner: In each school building. But I think there are varying degrees.
Hugo L. Black: In what area?
William J. Wagonner: In all of the school.
Potter Stewart: In a school district?
Harry A. Blackmun: In the county?
William J. Wagonner: Yes sir. This would be racial balance.
Potter Stewart: Now, is that what you --?
William J. Wagonner: I do not --
Potter Stewart: -- mean when you use that phrase?
William J. Wagonner: I do not mean, no sir. My position is that racial balance is where a conscious effort is made through extreme means to achieve the approximate racial balance in each school. Let me apply this to the plan that we have. The board plan cut across district lines. The District Court accepted those, it produced a racial balance somewhere between 15% and 35%. He went further and said, “This is not enough. Take these 10 schools, nine of which were predominantly black and one predominantly white and pair it with 24 other schools so that you get balance in these schools.” Now, it's argued that there's a range here in the elementary level from 3% to 41%. But you can move out of the 44,000 elementary students. You can move 300 black students and 300 white students, and the range of desegregation in the schools would be between 20% and 35%. Now, think at a range of 15% certainly is a racial balance. The 500 students who happen or 300 black students who happen to be in these other schools could balance the school system. This is de minimis under anybody's interpretation I think.
Speaker: (Inaudible)
William J. Wagonner: By his own --
Byron R. White: (Inaudible)
William J. Wagonner: We feel this would be at the constitutional obligation of the school board to do this. If it can be accomplished by reasonable means to disestablish a dual system by gerrymandering which the board did to the extent it could.
Potter Stewart: Is this against the background of the dual school system or in any way?
William J. Wagonner: This would be against a dual school system I would say.
Potter Stewart: Well, then, do I understand you then in your colloquy with Justice White concede that it is the constitutional duty of a school board at least one of which there has been previously or recently previously been a dual school system, it's their constitutional duty to maximize compulsory integration?
William J. Wagonner: I may have given that impression, my concept, well, my concept of an elimination, the affirmative duty is to take the Green case in the sixth criteria, you eliminated discrimination in faculty, staff, activities, transportation, the other elements. Now with reference to students, if you assign children on a non-racial basis, based on proximity and convenience, then you have accomplished a unitary system because you have assigned on the basis of non-racial. This is what Brown talks about.
Potter Stewart: But that -- this is if you've done the first five things.
William J. Wagonner: Yes sir.
Potter Stewart: Is that correct?
William J. Wagonner: That's correct.
Potter Stewart: Then you come to students?
William J. Wagonner: Yes.
Potter Stewart: And it's now as I understand your position that if you've done the first five things with respect to faculty and facilities, and so on.
William J. Wagonner: Yes.
Potter Stewart: With transportation, that if you've done that then your constitution, no duty is satisfied if you use colorblind neighborhood attended zones.
William J. Wagonner: That's correct.
Potter Stewart: Do I understand you correctly now?
William J. Wagonner: Yes.
Potter Stewart: Well that seems to be a little different from your answer.
William J. Wagonner: Well, perhaps it is. Let me state this. The board has gone further than I perceive the constitutional duty to be. The plaintiffs are not objecting to it but I think that their only objection to the board plan is that we have used racial assignments. I think that's the real key because if you look at Brown, it says arrange your school districts in compact units. These certainly are not compact units that Brown spoke of. One thing I might point out, if racial balance is a constitutional imperative, then it likewise becomes a constitutional duty upon all children, Black or white to attend a balanced school. If this is a duty then -- is this Court to permit those who were in reason of wealth are able to buy their ways out of the public school system. North Carolina has 20,000 students in private schools. Will those students be required to come in to the public school system to discharge their public duty? Will the 814,000 in New York be required to come in to the public school system? The 544,000 in Pennsylvania?
Warren E. Burger: Will does this case address itself, the case we are now arguing address itself to anything except duty of a publicly supported school system?
William J. Wagonner: Well, it seems to me that if you imposed a constitutional duty upon each person because of his race, this is similar to the old draft laws where a person was able to buy his way out of the draft.
Warren E. Burger: Well but does this case direct itself to a duty on the child or does it direct itself to a duty on the state?
William J. Wagonner: Well, I think the state acting as the alter ego of the child is using the child and the child thereby has a duty. If you go to racial balance, you are imposing a duty on the child.
Thurgood Marshall: Are there any parties in this suit rich enough to go to private school?
William J. Wagonner: I would think so. One of them just built a 100 unit apartment compound.
Thurgood Marshall: You don't know if whether they can afford it or not, do you? With respect to in this case? Is there anything in the record on it?
William J. Wagonner: No sir. There's nothing in the record on this but I think that if a duty is imposed on White children and on Black children to submit themselves the purpose of balancing, that this Court certainly should not permit by reason of wealth, a child to avoid the duty. This to me is a very real point in this case. Is that the court isn't punishing a school board, it's using children to accomplish constitutional systems and system is what this Court has consistently spoke of.
Warren E. Burger: But you started out to tell us what you thought were the crucial issues in this case, you said the first one is whether racial balance is a constitutional imperative. Now what's the second one?
William J. Wagonner: The second one that I would say if it is in the constitutional imperative, then what is a unitary system? We again look at Brown and we look at Green. Determine a non-racial method of assigning children to school, build compact units, don't consider race in assignment. Green says discharge the affirmative duty. We have discharged the affirmative duty because we have desegregated faculties completely, racially percentage wise. We have no dual bus system except that that the District Court has introduced. Each morning, we have black buses going out and white buses going in. So we do have a dual bus system but it's under court order. So under my interpretation, it would be a non-racial assignment of students based on proximity and convenience.
Hugo L. Black: Are you challenging that provision of the court that requires you to have a dual bus system?
William J. Wagonner: I think that it's unfair. I'm just pointing that this has been the effect. This was one of the evils of the old dual system is that you had blacks on one group of buses and whites on another. The District Court order has done this. All the Junior High black students, get on the bus and go to white schools. In the afternoon, they get on the bus and they are all black, and they go back home. So we do have the earmarks of a dual bus system. But we're not contesting.
Hugo L. Black: (Voice Overlap) --
William J. Wagonner: Pardon?
Hugo L. Black: Are you challenging that?
William J. Wagonner: No sir. We are not challenging --
Potter Stewart: Well I thought that was your whole challenge in this case, this compulsory --?
William J. Wagonner: We are --
Potter Stewart: Whether be on bus or on foot or by --
William J. Wagonner: We are not challenging --
Potter Stewart: By philosophy, what you are challenging is the District Court's order that compels this pairing and clustering in the satellite zones and the other devices to compel greater integration than was provided by the school board's plan. That is what your challenge is, isn't it?
William J. Wagonner: Let --
Potter Stewart: You say that's not required by the constitution.
William J. Wagonner: Let me state it this way if I may. We do not challenge the fact that the buses have only black children or white children on it. But we do object to the fact that their assignment to a school is based on race. Black or white it makes no difference.
Warren E. Burger: Well, the situation you described, I take it, you consider an inescapable consequence of the court's order.
William J. Wagonner: It is, yes sir. There's no way around it. Alright, the third question I would suggest is, does the board plan offer a unitary system? We have tried to compare ourselves to other systems in the nation that did not have the laws requiring separation of races to see how far they had gotten along. This has been excluded. But nevertheless in our plan, 68% of the black students would be in predominantly white schools. 32% would be in predominantly black schools. There are 103 schools. There would be both races in attendance at a 100 of these schools. Now, this to me certainly has earmarks of unitary system.
Potter Stewart: But as I understand what you've said, it is that the -- your client, the Board of Education of Charlotte-Mecklenburg, in its plan went further than a constitution required it to go. (Voice Overlap) --
William J. Wagonner: This is our position and again I will state that if the plaintiffs have a complaint, it is that we went too far because we have assigned children under the board plan on account of their race. Now, the fourth question that I would suggest is that once a unitary system is established, is there an affirmative duty to police and maintain ratios? Now, assuming the District Court's order, as upheld by the court, do we have a duty to maintain these ratios indefinitely in our schools? Do we have to continue busing for years and years, and years?
Warren E. Burger: Well isn't there a -- I thought you were about to put it in a different way? That if the pattern is all fixed in 1970 and then by -- an exodus of people who are moving upwards to take the phrase used in many of the briefs, moving upward to better homes, up where there are more green trees, and with more green grass. And there are other people moving in so that the pattern changes, must you as a constitutional matter, as you see it under Judge McMillan's order, reexamine, rephrase, and then go through a process of reassignment to bring yourselves in line with the new population pattern.
William J. Wagonner: This is precisely what he has ordered. And Mr. Horack will address himself to this particular question in the scope --
Warren E. Burger: Within a specific period? (Voice Overlap) --
William J. Wagonner: May I use this illustration? In our plan this year, we were balanced. As of figures of January 31, when we opened school, we have three predominantly black elementary schools. We have three more that are near black. We have the Junior High that's going to be black, predominantly black before the year is over. When does a school system get out of the business of balancing? Now here's a pure at case of racial balance. And here we have seven schools, three of which are already predominantly black and four more to go. And next year, what's going to happen? Could Charlotte become another Atlanta where the race is 60% black, 40% white? How do you balance in a system of that kind? I think these are very, very pertinent questions and the court should give some deep consideration to it.
Hugo L. Black: What has happened to change in the composition of the school which were governed by the (Inaudible)
William J. Wagonner: As an example of -- in Charlotte if I can give the court a little understanding of the city. It's not like Washington where you have row houses. There are neighborhoods, there are vacant areas, there's another neighborhood, it's a fast growing and has been leap frogging in the growth of the city. And one of the schools called Berryhill which is a row school that goes to the river to the west. An apartment complex has been built there. Four, five other apartment complexes have been built in other schools in that area. These aren't low rent housing. They are very nice -- it's a nice housing. As the judge remarked, it's nice to get these people out of the shot gun houses that they used to live in, the old-three room house. But they are moving to these nicer homes and if you go in and put a 500 unit apartment complex within a school district, the blacks are -- most of the public housing that is being built is being occupied by blacks.
Speaker: (Inaudible)
William J. Wagonner: Yes. One of the public housing projects was built by a black church in Charlotte, with 500 units. Another one, a 100 unit apartment complex was built by one of the plaintiffs in this case.
Speaker: (Inaudible)
William J. Wagonner: Because they are income requirements and the blacks buy and large are the lower income people, they are in the poorest housing and it's just a fact of life that the blacks move in and the whites don't move in. This is something that --
Harry A. Blackmun: The character in the neighborhood of some of these schools have changed.
William J. Wagonner: The whites have fairly well stayed in the district but they are simply over populated. If you have a school of 600 and you have it with a ratio of 400 to 200, you move 200 blocks in and you're 50/50.
Speaker: (Inaudible)
William J. Wagonner: Yes. It's occurring. They're moving to the suburban areas but it may very well be that adjoining counties will begin receiving the white population of Charlotte, I don't know, there is some small tendency along that line.
Thurgood Marshall: Well if the other counties receive that white population and the school boards, that those other counties are persuaded to do what Charlotte has done, where would they go now?
William J. Wagonner: Well it may be the blacks will not go to those counties.
Thurgood Marshall: No. I said --
William J. Wagonner: The blacks have historically stayed in the center city where transportation and jobs are usually available.
Thurgood Marshall: Well, the reason I raised all these questions is to whether the people who moved out or in or anything, we got the situation here, we are dealing with Charlotte as it is today.
William J. Wagonner: That's correct. In another question --
Hugo L. Black: What is your position may I ask? Take a district -- who built these apartments, it's the government or the state?
William J. Wagonner: The government financed it.
Harry A. Blackmun: The government financed it.
William J. Wagonner: Yes.
Hugo L. Black: And they -- usually they move in and let us suppose you have one of those areas where they have these apartment, let's suppose, if by reason to that house or something else, 90% of the people in that area, of that school building rather, wouldn't have to be bused are black. 10% white, are you objecting to the fact that they bused these people from that area into another area in order to make the blacks and the whites conform to a county of proportion?
William J. Wagonner: I have no objection as long as they do it voluntarily.
Hugo L. Black: Yes, I'm talking about the those -- are you objecting to the ideas that the constitution --
William J. Wagonner: The constitution does not require this. That's my position. As long as they consent --
Potter Stewart: (Inaudible)
William J. Wagonner: Pardon?
Potter Stewart: Is it prohibited?
William J. Wagonner: There is a question in my mind as to whether or not elected officials could go that far. I don't believe a court can.
Thurgood Marshall: Do you think that under the supplementary power given under the amendment, for the Congress to supplement a program to prevent discrimination, Congress could do it but that the courts cannot.
William J. Wagonner: That is correct. Now, there are several misconceptions about the facts of this case that I'd like to bring to the courts' attention. I've already alluded to the fact that we have promised great desegregation under the board's plan. There has been a tendency of the District Court and the Court of Appeals, and also the plaintiffs and petitioners in this case to suggest that the racial ratios of 69:70 is what the board plan produced, where we had 17 predominantly black schools, 5 predominantly black junior highs and one predominantly black senior high. But that is not what the board is here urging this Court to approve as desegregation plan. As our 68% of the blacks who are in the desegregated schools. Another one is that and we have been continually unable to clear up the question of the instructions that we gave to the computer. We asked one extension of time and Judge McMillan asked us, what are the instructions that have been given to the computer and we responded that we will not -- the computer will not make any assignments unless there -- if there are more than 40% black students in a student body. The reason for this was to gain stability. This school board wants to get out of the courts and get on with educating children and if we could build a more stable desegregation plan, this was our goal. When the plan was finally put together of necessity, whites were assigned to minority situations in all of the black schools, ranging from a handful to 17%. Another point that I would like to point out is that we only bus 514 blacks to all black schools. May I ask the court to catch the connotation of all black schools? What about all the blacks that live in the county that go to desegregated schools? They receive transportation. We are told that we place schools so that they would be handed to whites -- I mean handed to blacks and we bus whites to the predominantly black school, I mean white schools. The court lists eight schools that has 96 children live around these schools. The court will look, these were county schools, all of them having varying degrees of desegregation. Alexander has 30% black, East Mecklenburg 10%, North Mecklenburg 28%, and Olympic 41%. These blacks have bused to schools where there are only 96 people living around these eight schools. So we ask the court to not pay too much attention to the statement that only 541 students are bused to black schools.
Hugo L. Black: May I ask you, I haven't fully understood your position. Do you favor all of the District Court's order, do you favor all of the order as came to the Court of Appeals, or do you favor neither?
William J. Wagonner: I favor neither. I don't favor the District Court because he uses racial assignment. I don't favor the Court of Appeals, only secondary level, junior and senior high because there he used racial assignment. And if you look at the senior high plan that he adopted, there was no predominantly black school. The highest percentage the board proposed was 36% but the judge told us to pick up 300 blacks out of these two schools and bus some way out here to the South eastern corner of the County.
Hugo L. Black: How far?
William J. Wagonner: I would estimate about 12 to 15 miles.
Hugo L. Black: What for?
William J. Wagonner: The Court of Appeals said that it would tend to assure stability. It was a school that had 2% black students but what for is something that we have questioned repeatedly ourselves. But it's racial balance I think this is clearly evident that is racial balance.
Hugo L. Black: But any more than 2% of the black -- of black people who lived in the area of that school.
William J. Wagonner: No sir they do not. It's a large rural area. 20 years ago, a number of blacks (Voice Overlap)
Speaker: You mean, they were bused out of an area, where there were close to a school.
William J. Wagonner: Yes sir.
Speaker: Bus 13 miles into another area?
William J. Wagonner: Yes sir.
Hugo L. Black: In order simply to see and a certain percentage as shown by the old County was achieved in that balance?
William J. Wagonner: It was substantially achieved, yes sir.
Hugo L. Black: But what do you choose -- what do you think has an order? Since you do not favor either of this --
William J. Wagonner: I favor as an alternate and something that's workable, something that's understandable. The same thing that was argued in Brown. The same thing that was argued in Cooper against Aaron, the same thing that was argued in Green.
Hugo L. Black: What is it?
William J. Wagonner: You assign children to school on non-racial grounds. The criteria for assignment are proximity and convenience of students to the school.
Byron R. White: Well, according to the court's plan and that certainly concludes all sorts of racial assignments.
William J. Wagonner: This I acknowledge and --
Byron R. White: Well and you're supporting the boards plan, aren't you?
William J. Wagonner: I am supporting the board's plan as an alternative to --
Byron R. White: I thought the board sat down and gerrymandered the district as much as they could, paired schools in order to achieve some inter-mixture of a Negro and white students.
William J. Wagonner: They did this. But the --
Byron R. White: And they just didn't know as far as the District Court did.
William J. Wagonner: That's correct.
Byron R. White: Well, is that constitutional or isn't it?
William J. Wagonner: I think it is not constitutional and if these plaintiffs wanted to race it, they could tell us that we have used racial criteria in making assignments when Brown has told us, no racial assignments.
Byron R. White: But the board itself has proposed this kind of – this degree of integration if you want to call it that.
William J. Wagonner: That is correct. The board has disregarded its attorney's advice.[laughter]
Hugo L. Black: Your view is that the constitution does not require what the board did.
William J. Wagonner: That is correct.
Byron R. White: The constitution does require disestablishment, how do you go about disestablishment unless you take --
William J. Wagonner: The disestablishment that I see, comes in the first five factors over which we have control of the Green checklist, faculties, teachers don't have to teach but students have to go to school. So I think that you can make faculty racial assignments because teachers does not have to teach. But under compulsory assignment, the students has to go to school. His parents can be jailed if he doesn't. Transportation, we have eliminated. Staff, we have eliminated. Facilities, the District Court found that there was no discrimination in facilities and other activities. There's no discrimination there. So this gets you down. You discharge the affirmative duty with the first five items of the Green checklist. And then with students as Brown commands you assign students on non-racial grounds, non-racial basis.
Hugo L. Black: So I understand that you agree that so far as disestablishment and so far as they have discrimination forbidden by the constitution. But your position is as I understand it, that it is not discrimination forbidden by the constitution to let people go to the school closest to them, everything else being equal.
William J. Wagonner: That is correct. Now, one thing that --
Speaker: Could I ask you a question,Wagonner.
William J. Wagonner: Sir.
Speaker: Under the North Carolina law, does a child has a right to go to a particular school?
William J. Wagonner: He has no right. It's an untrammeled discretion of the Board of Education.
Speaker: In other words, the neighborhood school under North Carolina laws is not a requirement?
William J. Wagonner: That's correct.
Speaker: The schools zones in discretion?
William J. Wagonner: That's correct.
Speaker: The child has no right under North Carolina law, it will go other-- that where under the board plans, supposed to go.
William J. Wagonner: But I think under even North Carolina law or constitutional law, the child has a right to go to a school on grounds other than race or be assigned on grounds other than race.
Potter Stewart: But North Carolina law leaves -- gives a great deal of autonomy to the local school districts in the state?
William J. Wagonner: That's correct.
Potter Stewart: That's the way I understood your answer.
William J. Wagonner: Yes.
Warren E. Burger: In other words, in North Carolina, the school board can say all children in the first four grades must go to the school nearest to them. And all students in the next four grades should go wherever they may be assigned and yet the next four grades in a larger perimeter.
William J. Wagonner: That's correct.
Hugo L. Black: So long as it is not done underground the bridge?
William J. Wagonner: That is correct.
Warren E. Burger: Has there been any traditional pattern in North Carolina with respect to putting historically -- putting children of tender years in one type of the school nearby and children in older age in the schools in greater distance?
William J. Wagonner: It's a historical pattern of the Charlotte system that schools were attempted to be built within three quarters of a mile of a child. Now think if you looked at our elementary attendance map which is number two, which shows location of schools, this has been accomplished in large part.
Thurgood Marshall: Mr. Wagonner, do you have any children of tender age that rides to school buses as of '69?
William J. Wagonner: Yes sir I had, well not of tender age, I had a boy in the seventh grade.
Thurgood Marshall: (Voice Overlap) the Charlotte school system, they were busing children of tender age, weren't they?
William J. Wagonner: They were busing children of tender age.
Thurgood Marshall: Well for the purpose of maintaining a segregation?
William J. Wagonner: No Sir.
Thurgood Marshall: What are the reasons?
William J. Wagonner: They were bused to get them to school. Now this --
Thurgood Marshall: Wasn't the school near them?
William J. Wagonner: They go to the nearest school ordinarily. This is correct.
Thurgood Marshall: But they was so far away from the school, they had to be bused. Did they ever pass by a colored school on their way?
William J. Wagonner: There are no colored schools in Charlotte.
Thurgood Marshall: No, I'm talking about before this plan went into effect. When you did have (Voice Overlap) --
William J. Wagonner: I'll say this. Before 1965, there were still some vestiges of the old state dual system.
Thurgood Marshall: You did bus elementary school children of tender age solely to maintain segregation, is that true or not.
William J. Wagonner: We admit that we were a dual system and we bused children to get to school. We bused white children to pass black schools and black children pass to white school. This is uncontroverted.
Thurgood Marshall: Including children of kinder age.
William J. Wagonner: Including children of tender age whatever their age.
Thurgood Marshall: So what's wrong with busing them for the purpose of integrating?
William J. Wagonner: Do two wrongs make a right?
Thurgood Marshall: Is that the only answer?
William J. Wagonner: I think so. Yes.
Thurgood Marshall: Are you sure?
Hugo L. Black: Isn't that a pretty good answer?
William J. Wagonner: I think it is.
Lewis F. Powell, Jr.: The thing that bothers me is that if you assume that historically, the state has created a neighborhood that is segregated. I'm a member of that neighborhood, I'm a black and the school is black and the teachers are black and as Justice Harlan says the duty, the constitutional duty as I understand is to disestablish the system of segregation.
William J. Wagonner: Yes.
Lewis F. Powell, Jr.: How do you go about getting me the black student in the ghetto who wants to get out to another school when I haven't got the money to pay the daily bus fare? How how was that disestablishment achieved constitutionally?
William J. Wagonner: It's achieved constitutionally, any child who wishes to get out of the ghetto, simply makes application to the school for transportation and it's furnished free.
Lewis F. Powell, Jr.: Then we're right -- they start then with the problem of busing them.
William J. Wagonner: If this is voluntary, that the child makes that election to improve himself, he doesn't require others --
Lewis F. Powell, Jr.: Then the question is whether the board can make an appraisal as to the number of that would be likely to apply and these things have to be arranged not day to day but year to year. In order of the number of buses and so on that would be needed to transport the number that would be likely to want the shift, isn't that the problem?
William J. Wagonner: Well, no, this is not the problem. We can furnish transportation to any student where his race is in a majority to a school where his race is in the minority. This is the feature of our plan that gets around or answers the effectively excluded portion of Alexander.
Byron R. White: It's also a racial assignment.
William J. Wagonner: It's a racial assignment but it's voluntary.
Byron R. White: I know, but it's nevertheless state action conditioning which school you're going to go through based on race. No white child is transferred out of the school and Negro can't.
William J. Wagonner: And a white child can't transfer -- a Negro child --
Speaker: Would you think is wholly permissible?
William J. Wagonner: I think that it is because this is voluntary. You're not trading on the rights of somebody else to vindicate your own constitutional rights.
Byron R. White: Yes but you're keeping somebody else which is nevertheless race from doing the same thing.
William J. Wagonner: I don't understand the distinction you are making.
Byron R. White: There's a 90% of Negro school, a 10% white schools.
William J. Wagonner: That's correct.
Byron R. White: Your rule would say, the Negro may transfer to any school where his race is in minority.
William J. Wagonner: That's correct.
Byron R. White: You wouldn't let the white transfer to the same school.
William J. Wagonner: That's correct.
Speaker: The reason is on account of race.
William J. Wagonner: That's correct.
Byron R. White: And you think that is permissible?
William J. Wagonner: I think that is permissible. It's been suggested, I think Green suggest this, not in this context. It says that freedom of choice is used, it must work. So here is one that works.
Harry A. Blackmun: Mr. Wagonner.
William J. Wagonner: Yes sir.
Harry A. Blackmun: May I ask you about your answer in response to the question about remedy. You draw no distinction between a situation which has a de jure background and one which is purely de facto if there is such a thing.
William J. Wagonner: There is no distinction and this is something that time hasn't permitted us to fully controvert on the very shallow finding of the District Court permitted the same leeway that he assumed. I can find the jury segregation in any community in this nation. This is a sincere feeling that I have. Let me give you one example of the shallowness of his findings and said, by the use of racial restrictive covenants, the only evidence in this case when it was over the District Court, it was a North Carolina case --North Carolina Supreme Court case involving Charlotte, involving the community called Chantelle. There, the Supreme Court says, “There is no uniform scheme of development.” Therefore, there are no restrictions imposed against this property. But because of the provision in the contract against sale to members of the black race, that part of the contract will be imposed. Chantelle is a school that was predominantly white in 1968-69. We gerrymandered it and brought in children from the old (Inaudible) school. And now it's desegregated. It's not the paired. But my point is, the evidence before the District Court showed on its face that there were no residential or racial restrictive covenants of uniform application on that property, right in the City of Charlotte. I have hoped in the time that I was here to point out the various aspects of the plans. There is one thing that I would like to do and addressing myself to brief the Solicitor General. On page 25 of their brief, they suggest that we should consider changing the great structure. There was substantial evidence developed in the record that Charlotte - Mecklenburg, is moving to an unrated lower school grades. This permits students to move according to their ability within a homogeneous group. The next they say, permits students to transfer from a school in which their race is in the majority, the one which is in the minority. The courts below in adapting this technique also required that such students be provided transportation. The board offered transportation. This has been governed. Charlotte has done this and it is opted under its board plan. They say closed unneeded or substandard schools. Since 1965, we've closed and consolidated 20 schools. Is this no action? Is this a recalcitrant school board not exercising any affirmative duty. Drawing what the zone lands -- so they cut across racially impacted residential areas instead of encircling? What do you do when you gerrymander with a computer that doesn't know where a highway or a creek or a railroad is. We've cut across these zones. As they plan new construction of school facilities so as to serve the students of both races. This we can recognize as being something that can be handled in a boarder zone between black and white areas. I read in the paper that a 480 acres Golf course, affluent neighborhood is going to be built. Probably some 400 to 500 homes will go in there. This is located near the end of the County, southern end of the County. How do we build a school that will serve those students and also be desegregated. This is an enigma, the courts are going to have to face one of these days. How do you build a school when there's a vast separation between a large group of people of one race and a large group of another? This is something that is going to be an impossibility and I think the court needs to consider this in considering racial balance because if you go to racial balance, there's going to be a lot more transportation.
Warren E. Burger: Thank you Mr. Wagonner. Mr. Horack.
Benjamin S. Horack: Mr. Chief Justice.
Warren E. Burger: Mr. Horack. You have got about 33 minutes, am I correct in that?
Benjamin S. Horack: Yes. The court please, I want to open my remarks by of hearkening back to a comment Mr. Solicitor General here, that there were some doubt about whether the District Court had ordered that there shall be no all black school in Charlotte Mecklenburg. There is no doubt about that and on that score, I refer you to -- I think it's paragraph five, I maybe near in the paragraph of this February 5th order, page 822 (a) of the appendix and this is a “In his order that no school be operated within all black or predominantly black student body” so I concede that on that score, there is no doubt about it. That is his order and I suggest that we can move from that point without being played by any doubts.
Hugo L. Black: May I ask you what the record shows with reference to whether they are black people in that -- white people live in that area? Do you say he has ordered that there be --
Benjamin S. Horack: There be no black school. If Your Honor please, of course that order as it applies to the Charlotte Mecklenburg School Board plan of February 2nd is referring to the nine elementary schools and the one junior high school, that remained predominantly black under the board plan with black ratios extending from 83% to 99% which means that in some of those total of 10 schools, there were up to 17% whites. At the one junior high, that was 90% black and 10% white.
Hugo L. Black: Do you say he ordered that there should be no all black school in that area where there were 17% colored people?
Benjamin S. Horack: He did.
Hugo L. Black: Are you defending that?
Benjamin S. Horack: No sir. On the contrary, exactly the opposite. It is because of his order in this extent. That there was imposed on the board what is called the court ordered finger plan with all its cross busing at the elementary level, the so called satellite busing is the junior high level to get rid of the one black school and incidentally it's interesting to note that at the junior high level, that involved busing out 2700 black children out to outlying suburban junior high school, busing 2700 because there were 758 black that made up and 90% of this one junior high. And of course the same as true at the senior high level and that's already been alluded to except that had a different switch and twist on it. You talk about balancing. It's there. It's there at the elementary level with its cross busing and satellite busing at the junior high.
Byron R. White: Would that February 5 order also defined order?
Benjamin S. Horack: Yes sir.
Byron R. White: Do you state that?
Benjamin S. Horack: If Your Honor, please, the final order if you're referring to the August 3rd order, I remind the court that there were those July hearings that were undertaken as result of remand. Where the Court of Appeals sent it back to the District Court on the test of reimburse to and he found his February 5 order reasonable.
Byron R. White: And he reinstated it?
Benjamin S. Horack: Yes sir, he reinstated it.
Byron R. White: Paragraph six also says that pupils of all grade shall be assigned in such a way that is nearly is practicable of various schools at various grade levels, have about the same proportion of black and white students.
Benjamin S. Horack: Yes sir that's correct. That's in both and there again, I would suggest to by Your Honors if there's -- if there really is any serious doubt as to whether racial balancing is involved in this case. I refer you to what Mr. Justice White just alluded to and upon examination Mr. Justice White, you'll find several other portions of the order of similar import.
Hugo L. Black: It seems to me that the difference (Inaudible) so what is balance, what do you mean by balance?
Benjamin S. Horack: Mr. Justice Black, it's hard to define where the twilight zone but you've got the whole hog arrangement where every school in a system, for instance Charlotte-Mecklenburg has 70:30. I mean that's the ultimate. Then I think you have racial balancing as the goal, the objective to be achieved.
Hugo L. Black: What do you mean by racial balancing?
Benjamin S. Horack: Racial balancing is a device that has as its objective, the proportionizing of the student bodies.
Hugo L. Black: Whether they live there or not?
Benjamin S. Horack: Whether they live there or not among the individual schools.
Warren E. Burger: Here indeed every school, is that.
Benjamin S. Horack: Well, every school, Mr. Chief Justice, but I believe the concept of racial balancing can be short. You can still have something that is properly designated as racial balancing that falls short of the ultimate. Now Judge McMillan, he had and matter effect. He said, “I'm not racial balancing. I have no order of racial balancing. I'm merely directing racial diversity”
Hugo L. Black: What do you mean by that?
Benjamin S. Horack: Mr. Justice Black, I don't know. I think it's a word game. And so.
Potter Stewart: Well didn't he say Mr. Horack, I don't have his opinion right in front of me but I've read it more than once recently. Didn't he say that the touchstone of what the ideal objective should be would be 71% white students, 29% Negro students, eight school building in the District. But he realized that that optimum objective was not possible?
Benjamin S. Horack: That's correct.
Potter Stewart: But he said, what we're going to do is but it can using the Court of Appeal's language, what can recently be done to make a maximum approach to that objective. And that's at least where he verbalized what he did isn't it?
Warren E. Burger: I would agree Mr. Justice for your interpretation that analysis where Judge McMillan said, but we can't get it would do it all the way. But we're going to come just as darn close to it as we can.
Harry A. Blackmun: If we possibly can under the test of reasonableness.
Benjamin S. Horack: But what I do suggest is that the District Court did not give real, sincere application to the Court of Appeals test of reasonableness.
Potter Stewart: Well, perhaps not but at least --.
Benjamin S. Horack: In only that degree would I put a proscriptive Your Honors own (Voice Overlap) --
Potter Stewart: But the ultimate question here I suppose the ultimate basic whereabouts question is, whether the United States constitution requires an effort, whether it be the maximum reasonable effort, or a maximum feasible effort, or the stricter test proposed by the petitioners of this in Mobile case, the maximum humanly possible effort. Whether or not the constitution requires any such maximum effort towards that objective, that I've mentioned that is in this case 71%, 29%.
Benjamin S. Horack: And if Your Honor, is asking me.
Potter Stewart: That is not the ultimate issue.
Benjamin S. Horack: Do I think that is the ultimate issue? My answer is yes. If Your Honor is asking me, whether I think that it is a constitutional imperative, I say no.
Potter Stewart: Question, that is just -- that is the issue.
Benjamin S. Horack: I intended to address --
Hugo L. Black: The area of the whole county, is that right?
Benjamin S. Horack: Sir?
Hugo L. Black: The percentage to be based on the respective populations of white and colored.
Benjamin S. Horack: Throughout the session Your Honor.
Warren E. Burger: Would you think, can you tell me whether under not the North Carolina law, the school board would be permitted to establish a plan that went beyond the constitutional requirements but would be a plan which because of their plenary authority over schools would be one which the public or the citizens and the students had to accept.
Benjamin S. Horack: Your Honor, that is a tough one and that's why you asked it. I would say no but I want to put – that no the school board could not even within the realm of its plenary powers and those powers indeed are broad. I would put this postscript on my response. As I again, going to allude to later but I'll now to an extent. And you talked about the rights of individual. Be they blacks to attend a desegregated as part of a desegregated system for the reverse rights that Mr. Justice White referred to, of the whites whether their rights are being imposed upon or used as it were and hence denied under the Equal Protection. I think that both of those rights at the end of the spectrum like almost any other item of the constitution is not a hard nosed absolute. Your Honors may recall that we attempted to develop that thought which time does not permit now in detail in our brief. In response to the comments of Judge Sobeloff and Winters and Judge McMillan who views these rights as absolute, absolute rights to attend a school with some acceptable mix. And that is an individual right and it cannot be taken away from them. It cannot be denied. Well to that I say, as we said in brief that that right as well as freedom of speech, and the right to counsel, jury cases for all the rest of it. They all and this Court has recognized long, series of cases are subject to an application of reasonable. Now, to your question Mr. Chief Justice, I think that a school board can reasonably go to a point and require racial balancing or maybe I would better say that they would have to go to a point that might involve some mixing. A countenance of the races as it were. But they probably could not go even on their own inherent power, so-called, plenary powers. I mean, they could not go beyond the point where they edict a racial balancing if that's the case.
Warren E. Burger: Let's me test that with this question. Could the school board survive that all children in the first four grades, irrespective of race, go to schools within one mile from their residence and not to have that vision with reference to any other grades? Is there any constitutional question involved in the school board's right to do that or is that discretionary?
Benjamin S. Horack: If Your Honor please, I think that it gets down with a reason why the differential was made, if it were made strictly if you would presume with me for a racial balancing reason.
Warren E. Burger: No, irrespective of race. No racial factor at all.
Benjamin S. Horack: Yes sir. Certainly they can.
Warren E. Burger: No constitutional question there, is there?
Benjamin S. Horack: No. As a matter of fact, it goes without saying that school boards make the differences such as Your Honor suggested everyday in administrating the educational program for one reason or another of school system. So of course, I would concede that.
Hugo L. Black: Thar's because you think as I gather, that's the state has complete control of its school except so far as forbidden by the constitutional.
Benjamin S. Horack: Yes sir. You stated it much better than I did Mr. Justice Black. With reference to this, all black school business, I would say this that the what is the nature of the right that let's say it's a black child or although it could be of white, what is his right under the Brown and Green decisions? It's our view that it is not a right to attend a particular school of a particular mix. On the contrary, it is the right of a child to go to school in a system where every vestige of discrimination has been eradicated.
Hugo L. Black: On a count of race.
Benjamin S. Horack: On a count of race. And that I would agree therefore, that if a school board undertakes to evolve a plan as indeed the Charlotte-Mecklenburg one did, that evolve zones, evolve zones where the net result and where those lines ran at absolutely no racial bias to them at all.
Potter Stewart: May be then I have misunderstood it. I thought the school board's plan did have a benevolent racial bias.
Benjamin S. Horack: Excuse me, I concede that. And it is that phase of it which Your Honor referred that occasions are coming that our school board plan of February 2nd went far beyond what the constitutional imperative --
Potter Stewart: But the plan in fact did have a benign racial --
Benjamin S. Horack: It did. I mean that (Voice Overlap) obviously it did. Admittedly it did and it went far beyond what we say we were required to do it. So I say that the right of the child is to be a part of the system. And hence that is the opposite of what the petitioners contend for and that is that a child has a right and must eradicate every black school. I'd like to address -- sir?
Potter Stewart: Your point I guess is that this is not perhaps the individual constitutional right of an individual public school student but rather it's the constitutional duty of every school board to operate a non discriminatory system in some what of an analogy to the jury cases -- that's the duty of a state to have a non discriminatory jury system, but it's not the right of any particular defendant to be tried by a jury which is racially representative of the racial make up of the community. Is that it?
Benjamin S. Horack: Not quite, I say your last namely that duty of a school board who established a non discriminatory system.
Potter Stewart: That's the constitutional duty.
Benjamin S. Horack: So I'm with you on that phase of it. There's other phase of it is the first part. I say of course the, let's say the black child of this isn't true. He has a constitutional right under the Equal Protection Clause. Now, the next question is what is?
Potter Stewart: Well that's right and why do you say it is?
Benjamin S. Horack: I say it is to go to school in a system that where as far as pupil assignment is concerned, the areas however devised, however arranged are --
Potter Stewart: Racially non discriminated.
Benjamin S. Horack: Without any racial balance. That is his right to be a part of that system.
Potter Stewart: And I did -- I think I understand.
Benjamin S. Horack: As far as back to this racial balancing business, the time is running short but I would commend to Your Honor's consideration, the following portions of the District Court order if there's any lingering doubt that in fact Judge McMillan did prescribe racial balancing. Appendix 710-A to December 1 order, the appendix 822-A of the February 5 order.
Warren E. Burger: You're going a little fast for me.
Benjamin S. Horack: Well I'm sorry.
Warren E. Burger: What's the first one now?
Benjamin S. Horack: Appendix 710-A, that's the December 1 order and that's where he said that the court will start with the goal or that there should be idea of the 71:29 ratio. Appendix 822-A, that's the February 5 order.
Harry A. Blackmun: Now, would you stop a moment -- what's the paragraph 710-A that you refer? Because as I see it, in paragraph 12, the fixed ratios of pupils in particular schools will not be set --
Benjamin S. Horack: This was the portion --
Harry A. Blackmun: This is the December 1 order, 710-A.
Benjamin S. Horack: Yes it's at paragraph 12 Your Honor.
Harry A. Blackmun: And that's why I'm looking at fixed racial --
Benjamin S. Horack: Well it starts down there and default of any such plan, the court will start with authority that it advanced the order April 23, that effort should be made to ratio to 71:29 ratio. How well I'll do on this other paragraph number, but second is February 5 order, appendix page 822-A.
Harry A. Blackmun: Well that's the one I guess.
Benjamin S. Horack: That's the one Mr. Justice White referred to. And the next one which needs a little emphasis, that is also in the February 5 order, 823-A wherein the court said that the school board shall maintain a continuing control over the race of the children. And then at appendix page 824-A of the February 5 order, and again, shall adapt and implement a continuing program computerized or otherwise with assigning pupils for the conscious purpose of keeping things in a condition of desegregation.
Warren E. Burger: Are you arguing with that demands of the continuing surveillance to maintain substantially the 71:29 racial balance?
Benjamin S. Horack: Forever you mean? Is that your question?
Warren E. Burger: I'm asking you. What do you say that Judge McMillan meant? Is that for just this year?
Benjamin S. Horack: Mr. Chief Justice, your idea about this is good as mine, and I have none.
Warren E. Burger: But what would continuing control mean? If it didn't mean that he was going to continue overseeing it.
Benjamin S. Horack: I think very definitely that is what he is saying to us and I think it portends rather grave problems as a constitutional matter and as a practical matter, from here now. I think Judge McMillan basically will be an ex-official member of our school board for I don't know how long.
Thurgood Marshall: How long is this case been in court already?
Benjamin S. Horack: This Court was instituted back in 63, 64, 65.
Thurgood Marshall: It's not 70?
Benjamin S. Horack: No sir, we --
Thurgood Marshall: Why worry about impingement?
Benjamin S. Horack: Mr. Justice Marshall, we're deeply concerned about the future. Not only acquit in full major our constitutional obligation and apart from the constitution to fully acquit our sales to the children. Black and white in our community, we want to get back to education. That's why we're concerned about the future. We want to bring this thing to a (Inaudible). And we hope that this -- as a result of this case, we may be enabled to do that. So we're very much concerned. I would like to say --
Harry A. Blackmun: Can I ask you a question?
Benjamin S. Horack: Yes sir.
Harry A. Blackmun: You say the school board went beyond what do you think the constitution required?
Benjamin S. Horack: That's correct.
Harry A. Blackmun: Would you say it went there on its own initiative, or was it told to do so?
Benjamin S. Horack: I think that, Mr. Justice, I think the school board went to this school board plan that we say it went beyond the constitution “voluntarily” under the pressure of the District Judge.
Harry A. Blackmun: How about the Department of Health education welfare?
Benjamin S. Horack: There was no problem on that school.
Harry A. Blackmun: No problem.
Benjamin S. Horack: No sir. See, they didn't come in to the picture really until the July hearings.
Speaker: When they offered their plan that the issue along number four as submitted. As I mentioned there?
Warren E. Burger: Would you keep your voice up the counsel so we'll stay on the record?
Benjamin S. Horack: The HEW came into the picture as a result of the Court of Appeals, May 26 opinion, when it was remanded with the strong suggestion, I think it was that the HEW be brought into the picture and this is the result of their plan. Our plan, I might add that was shot down by everybody inside. I think it's well known that we have had a badly divided board. And it's nine members, five to four, and it was – it's significant that this was about the first unanimous vote that they've had on that board and I don't know how many years, unanimous vote against the HEW plan, incidentally for these reasons. Number one, it had a great structure where for example, when zone number four, there are three elementary schools, I don't remember specifics but there's one group of children that go for grades one and two here and three and four here and then another one, and some of the zones, the children go to four different elementary schools during the course of their sick years of elementary schooling. That busing under it was the District Court Judge found was about on a par with what his estimates were of the finger plan and the board minority plan and furthermore they came out with ratios projected to 50% to 57% that we knew they would never stick, all in the world, you would have would be to end up with re-segregation and in the next place, they used schools in these clusters, in this mixing process which is another type of racial balancing, used and employed schools that were already desegregated under our school plan. Well, that in passing are the few reasons why neither the District Judge nor the school board had any tolerance for the HEW plan.
Byron R. White: Are you going to argue with all about the whether or not this order exceeds or violates the federal law?
Benjamin S. Horack: Mr. Justice White, that's going to be a subject matter of the next two cases and I thought as we would finess.
Byron R. White: All right.
Thurgood Marshall: Are you referring to a Court of Appeals opinion remanding for the board to take certain action? Is it your argument that the Court of Appeals opinion replied them to taking in to consideration that balancing process?
Benjamin S. Horack: Yes sir. Let me try my own articulation to a question you asked Mr. Wagonner. As far as the District Court's order is concerned, we are offended by it because it says that we can't have a black school. It is based upon racial balancing and it was a court order supplanting of a board plan that we feel was thoroughly constitutional because it was based and established its lines on completely non racial ground. Now that is why we take offense at Judge McMillan‘s order. As far as the Court of Appeals is concerned, I must digress to remind ourselves what did they do? It's then the objective of the District Court at all three instructional lesson, with elementary, junior, and senior. As far as the Court of Appeal is concerned, what did they do? Well, we approve their rule or reason, simply because in our view, in the name of commonsense, you got to have a rule or reason about almost anything. So, but we say that the Court of Appeal applied, misapplied its own rule in the sense that it too issued a ruling that was based on the racial balancing for these reasons. What did just Court of Appeals did that the elementary level, they say said, the school board -- you haven't done enough so Judge McMillan, you've done too much. There's too much busing and transportation in this location and so forth when that super imposed upon the secondary level, junior, and senior high. So in effect, this Court of Appeals found Judge McMillan's elementary plan to be unreasonable, you went back took another look at it and found that sure enough, he was reasonable all along. At the junior and senior high school levels, the Court of Appeals looked at and said yes that's not so bad. That's okay”. But in so doing it, they approved the satellite busing and the balancing at the junior high and what is the most glaring example already alluded to at the senior high, they approved that. That's the 300 black children from the inner city that bus 1213 miles out to independence high, that under the board plan had a 2% black population. It took to 300 from schools that we already had it almost perfect mixing under the board plan. And the only reason they bus those 300 black kids was to make a white school less white. So, really although the smaller problem, the most glaring single example of racial balancing is the senior high.
Potter Stewart: I understand everything you've just said except that you approved the Court of Appeals rule of reason. I didn't understand that you did. Now, not of course every -- no man is going to say, “I'm against being reasonable” but then and I don't -- we're not talking about that but using this as a term of art, because as I understand, the rule of reason is that -- as explained by the Court of Appeals for the Fourth Circuit is that the constitution requires maximum racial balancing, consistent with what is reasonable. And I didn't think you did agree with that.
Benjamin S. Horack: You're so right. Yes you correctly state -- I was using our approval for the rule of reason there in the sense that.
Warren E. Burger: Do you approve of people being reasonable? We all do.
Benjamin S. Horack: Yes that's correct. Then it also does have a technical connotation in the sense that in brief as I've already mentioned, we developed a line of argument there that says a constitutional right and an individual's constitutional right in a multitude of areas, religion, speech the jury accounts and so on, is nevertheless subject to, it is not absolute. You can't run into a building, crowded building, horrified and so forth. The counsel you know that six months --
Hugo L. Black: Do you think there's no absolute rule? By this you mean, there'll be no discrimination against people by state laws on account of color?
Benjamin S. Horack: I think the rule is absolute -- but I think the rule, it's an absolute as a requirement but in order as complex things are in order to accord that right or protect that right. I think you immediately thrust back into some type of feasibility or rule of reason and incidentally --
Hugo L. Black: You mean the courts are driven back to the rule of “feasibility” are reasonable “issues” (Voice Overlap) well as to say whether or not the policy is reasonable, which appears in the constitution.
Benjamin S. Horack: Yes and I think it's a very -- exact standard.
Hugo L. Black: There are some people who might agree to some of your argument than to agree with that would it?
Benjamin S. Horack: Sir.
Warren E. Burger: Are you suggesting that in the same sense that reasonable search are permitted under the constitution but under unreasonable searches are forbidden. Is that the sense in which you're using the term reasonable?
Benjamin S. Horack: Perhaps Mr. Chief Justice, I was really and in brief -- where we're talking about the cost of buses and numbers of buses, and this location in brief in particular what is it involved with case – mere distinction between where petty crimes leave off and they have a right to counsel -- if it's less than six months you don't but why, it goes for the efficient, expedient administration of justice which brings you right into a practical reasonable feasibility aspect.
Hugo L. Black: One other question. I understood you to say something about this matter. And I don't quite to get but you go ahead and I guess ask you in a minute.
Benjamin S. Horack: Let me say one other thing about along the line.
Hugo L. Black: My question was because I think you gave it to me differently and you have easily accessed the point where we can find the Court of Appeals opinion saying that remanding the case in order that they might use the doctrine of what you're talking about.
Benjamin S. Horack: Yes sir the Court of Appeals opinions commences at --
Hugo L. Black: I mean the part that says that, remands it for that purpose. It might be very important to (Voice Overlap) --
Benjamin S. Horack: Because it is reasonable.
Hugo L. Black: If the state law provides it, they should be done of course. And there, it should be done.
Benjamin S. Horack: The test of reasonableness as expounded by the Court of Appeals, appears on appendix page 12 67-A. I don't have a reason for this. See, what they did, they vacated the judgment and remanded it.
Hugo L. Black: I wasn't talking about the test of reasonableness. There is a question in this case with reference to policy and I want to find out where that has been remanded for the question, for the determination of dispute between -- in this case.
Benjamin S. Horack: You're talking about the Court of Appeals [Voice Overlap]
Hugo L. Black: Did they in anyway coerce or intimidate and tell the court that it had to take into consideration a balancing process. I understood you to say it did and I want to know where it is.
Benjamin S. Horack: Not specifically. The majority of the court never admitted that they were condoning or using racial balancing. The dissenting judge who joined the majority in order to have a requisite vote, Bryan called it like it was and said, “you're talking terms of integration, but I'm telling that like it is, it's really racial balancing you're doing” So you have to read the opinion to draw your own conclusions -- .
Warren E. Burger: But that is the point. 1267-A in the appendix.
Benjamin S. Horack: That's where the test of reasonableness is set forth by the court.
Warren E. Burger: Thank you Mr. Horack. Your time has expired. Mr. Nabrit.
James M. Nabrit, III,: Mr. Chief Justice.
Warren E. Burger: Somewhere during the course of your discourse, it would help me, if you would suggest something about your view on the continuing surveillance nature of this order and what does the court do if in rather say three years they find that pattern of population has substantially altered so that the 7131 is no longer a remedial measure, under the standards laid down by that court.
James M. Nabrit, III,: Mr. Chief Justice, may it please the court. I will attempt to address that question because I think the issue of establishing a desegregated system and keeping it that way is one of the important practical problems that a District Court and the school board has to face. Let me begin however by stating that it is our view that Judge McMillan's decision is desegregation order. It can be a affirmed on either of two grounds. Either on the ground that he did not abuse his discretion in ordering a plan which remedied the wrong effect and also that it can be affirmed on the ground that Judge McMillan stated the proper constitutional objective. Well, I think it's helpful if we get down to specific in some of this, and not talk about some of these complicated phrases like balancing and so forth which have different meanings, and look at the practical problem that Judge McMillan faced last December 1st. The situation was this. A month earlier, this Court had ruled in the Alexander case that integration had to proceed at once. Judge McMillan has just found that Charlotte-Mecklenburg had 25 racially identified schools in which 2/3 of the black children in the city were located. It also found that 90% of the fact is re-segregated. And he had just received the school board's third integration plan, since April. And he found that in it they were asserting candidly they did not intend to eliminate all of the black schools. So what he did was conscience that it was duty under Alexander to proceed expeditiously, he appointed his own consultant and he sat down to in the December 1st opinion, trying to give the consultant some instructions about what to do. Now, Judge McMillan had found that the all black schools in Charlotte were created by state action and he concluded that it was his duty on the Green to adopt the plan that would remedy that situation, to establish that situation and he further had heard evidence that it was possible that there were plans. So he appointed an expert and he told him in the passage that Mr. Horack referred to. That if the school board had come in with a plan, I wouldn't have required any fixed racial ratios or anything like that. But in default of them bringing you plan, you should sit out as pursuing the ideal objective of 29:71, but understanding that you may not be able to reach that. And you told them, you can use all of the techniques that the normal administrative techniques of assigning pupils and report back. And also told the school board again, you have another opportunity, a fourth opportunity to bring back a plan. The plan that the judge's consultant brought back was not a plan which balanced every school. The percentage of blacks in the system under the plan that the judge ordered varied from the low of 3% blacks in the school to the higher 41%. Another point – the judge gave his consultant no instructions that he was to go out and integrate white schools. The instruction was, that he was to eliminate the all black schools, and majority black schools. And that was based on a conclusion that was possible to do so. Now, in the final analysis, the district judge's understanding of what he was doing was that he was following Green. He was assessing the available plans and picking the plan that accomplished the best result. I submit that it is not error for a District Court in such a circumstance to require a school board to do more than the minimum. It's not the District Judge's job to try to find the fine line of the constitutional demarcation between a segregated system and integrated one and just exactly get them up to their minimum obligation. It's duty as set in the Green case is to desegregate the system within the branch, to integrate the system so thoroughly, that segregation will not reoccur if that can be done. Now we come to -- (Voice Overlap) --
Potter Stewart: You're talking, now that branch of what you just said is talking, is directed to an appropriate or at least permissible exercise of a District Court's discretion, equitable discretion to correct a conceded previous constitutional violation. Do I understand that correctly?
James M. Nabrit, III,: Exactly right.
Potter Stewart: You're not talking, -- we've not been talking about what a board's constitutional duty substantively is --
James M. Nabrit, III,: That is absolutely right.
Potter Stewart: Okay.
James M. Nabrit, III,: And now I'm at the point where I have Chief Justice's question about the duty in such a situation to try to plan an assignment system, that will work in terms of Green. And that will not immediately revert back to segregated system. And what the court consultant did was to use these normal school assignment techniques. Techniques that the school have been using all along, drawing school zones, transporting children to plan strategies, to try to avoid the situation immediately turning back to a segregated situation and he was doing this in a fact pattern, where he had a history of that in Charlotte, it had a series of schools that had been integrated and turned black. So that the effort was being made to prevent that from happening. Again, now that the -- now and this really bring us I think to an important and analytical point, and that is that the school boards actually do control the racial composition of the schools. Necessarily they do because there really is no such thing as a neighborhood school that exists in the abstract. The school board determines what the relevant neighborhood is for a school, by a whole series of decisions. Those are the decisions that relate to such things as where do you build a school in the first place? How big do you build it? And those two decisions already affect in a sense what its neighborhood might be. When you decide how many classrooms to put there. And then another decision that's made that affects it is when you decide how many grades you're going to at school and it's not true -- these cases contain records of the school board using. Those decisions to keep the place segregated. In other words, if you had a compact black community in Charlotte, you'd build a school with all 12 grades serving it and the rights as per that black community. Now this was the kind of the jury action to affirmatively segregate that the District Judge had been talking about. We're not talking about things pre-Brown, before 1954, we're talking about what's been going on during all this massive resistance since 1954 as well.
Warren E. Burger: But would you agree Mr. Nabrit that the school boards like other bodies can make honest mistakes of error in the size of the school that they plan and the location of it and honest errors in the sense that the future development of the community proves that their original judgment was not very good. Now (Voice Overlap) --
James M. Nabrit, III,: I think I'm not addressing in any of those areas.
Warren E. Burger: But suppose that happens with respect let's say to anyone of those two paired or three, or four of those paired groups so that at the end of three years, something that was substantially 71:29 now, under Judge McMillan's order, turns out to be 80:20 or 90:10, does the court have something like a reapportionment function to order the school board to redraw its lines and be gerrymandered so as to restore the 71:29 again?
James M. Nabrit, III,: My time is really struggling. Let me try to answer that. I mean my answer is yes that the school board has a continuing duty to control the racial composition of the schools. However, I make that answer against the background of facts which establish that the school board inevitably makes decisions which are going to affect the racial composition. In other words, one of the assumptions underlying much of this is the assumption that if you have a compact residential neighborhood zone that that is non racial or neutral. But that's not showing so in Charlotte because it's been established and found on this record that the neighborhoods were racially controlled by the state action and the schools were built to fit the racial neighborhoods. So it seems to me that the continuing duty to keep the school system integrated results not from any punitive sense or sense that the school board has (Inaudible) and that you have to monitor them for any continuing period of time. It results from the fact that their decisions are inevitably going to affect the racial composition. The Solicitor General would have us think that the choice to be made is between something called neighborhood principles on the one hand --something called racial balancing on the other hand. And I submit that is simply -- that's just simply not the choice that faces the court. What the court really has to decide in the fundamental sense is whether or not the school systems are going to be required to be desegregated. So it's a result test that we ask. Not a feasibility test, not a workability test. It's primarily a result test based on Green.
Warren E. Burger: Let me interrupt you for a moment to say that we allow the other side of the table about four minutes extra and so we'll allow you to run till three o'clock which will give you a little bit more time in view of our balancing of time problem anyway.
James M. Nabrit, III,: I appreciate that. I hope I can use the time wisely.
Warren E. Burger: You've suggested this is a continuing duty of the school board. I have no difficulty in that at all but certainly that's the function of the school board. Is there a continuing duty of surveillance with continuing jurisdiction in the District Court once it has assumed this function in the case?
James M. Nabrit, III,: Well, the real problem is that unless we have a test based on results, we are left with a test based on good faith. Now, in discretion, I don't mean to evade your question. I'm answering it in this way. But because -- take for example, the standard offered by the Solicitor General, that the Solicitor General says that the factors to be considered are and he names five. The size of the school district, the number of schools that is a hardship for the children involved. The educational soundness of the assignment plan, and the resources of the school district. Now, those are the factors that the courts are supposed to apply. In the brief of the United States in deciding whether or not we're going to have remaining black schools in a particular school system. And I'm saying that that's so vague in general. What it really amounts to is a good faith test.
Potter Stewart: You say proper test is a result oriented test and that that test should be as I understand it that there be no racially identifiable school, individual schools. However, that phrase maybe defined. Do I understand it correctly? (Voice Overlap) very heavy burden on the school board to show that it's impossible to eliminate a particular racial area.
James M. Nabrit, III,: Though racially identifiable are minority schools and we do focused on that because it -- the segregation system had two characteristics, I think that it had at least two that are relevant to this analysis. One is, that black children were excluded by law from white schools. The opts the other side of the court here, the fast it is, that they were required to attend the black schools -- the all black school as one of the principal institutions in the segregated system. This is the place where black children are set aside with the state's command that they are not fit to be anywhere else. Now, it's our submission that the reform has to be on both levels. That there does indeed have to be a new system if you use the term under which pupils are not effectively excluded because they're black from these schools but also has to be reformed of this principal institution the all black racially identifiable school. Now, defining that --
Potter Stewart: It's either all black or racially identifiable. Isn't that even though not all black.
James M. Nabrit, III,: I do not speak precisely. It's the racially identifiable school [Voice Overlap] Yes the minority racially identifiable.
Potter Stewart: -- minority in that particular school district.
James M. Nabrit, III,: And by that -- now, it's the black minority.
Potter Stewart: Well what if they are the majority at a particular school district.
Byron R. White: What about (Inaudible) high schools, you would say that you couldn't have a minority white school?
James M. Nabrit, III,: Well, I don't say that. Well you can integrate the black unless you integrate the white pupils and so I suppose I will follow. We are not offering a test that's based on the theory that you have to -- that there are some white children at a great remote distance and you have to bus pass Negro's with a great distance to get those white children some integrated experience out of that. That might be good for them, they might learn more about the world is like if they had that experience.
Potter Stewart: But you're not --
James M. Nabrit, III,: But that's not our submission.
Potter Stewart: But that is the senior high school situation in this particular plan.
James M. Nabrit, III,: No it's not. That plan was based on trying to develop a strategy against re-segregation. The point was that west side of Charlotte is tending to go black and the court consultant thought that he could make an assignment of pupils based on a comparable distance to all the other assignments of the high school level. But those pupils are going about 12 miles, don't go anything farther than average. They were going less distance than the average. The Court of Appeals approved that on that basis. That he would prevent -- you try to cope with this problem of re-segregation.
Warren E. Burger: I think your time is up Mr. Nabrit. Thank you for your submission. Thank you gentlemen.