Warren E. Burger: We will hear arguments next here on 76-447, Milliken v. Bradley. Mr. Attorney General.
Frank J. Kelley: Mr. Chief Justice Burger, may it please the Court. We are here appearing on behalf of the petitioners in this cause. The Court might recall that I was here some three years ago on this school desegregation case, regarding the question then of whether the lower court had exceeded their authority in ordering an inter-district remedy in the absence of an inter-district violation. In reversing this Court at that time held that the constitutional right of the plaintiffs was to attend a unitary school system within the City of Detroit, and remanded the case for formulation of a decree to eliminate the segregation that existed within that city. Following the remand and pursuant to the order of the District Court, the plaintiffs and the Detroit Board of Education each filed a desegregation plan. The plaintiffs plan dealt solely with pupil reassignment. It contained no educational components. As a matter of fact, during the plaintiffs expert testimony in the remedy stage, their expert testified that the plaintiffs plan would in fact eliminate the segregation plan which is just in Detroit. On the other hand, the Detroit Board of Educations plan in addition to recommending proposing pupil reassignment for the first time included Cert. 13, so-called Educational Components at a projected cost of $13 million annually to its plan, and that the Detroit Board in addition demanded that the cost of these expanded Educational programs be paid by the petitioners, who are State officials in the State of Michigan, in the Executive Branch of Government and the money come from unappropriated State funds.
Speaker: The Board of Education, Detroit Board of Education was at that time a defendant in the case, wasn’t it?
Frank J. Kelley: That is correct.
Speaker: Do you think you would have any -- the State officials would have any standing here if the Detroit Board had agreed with the District Court’s order, and the District Court’s order it sort of sought to impose no financial burden on the State officials?
Frank J. Kelley: Probably not Mr. Justice, the plaintiffs at the time that the Detroit Board of Education made this recommendation in their plan responded to the Court by pointing out, the plaintiffs himself pointing out, that in the findings there were no violations with respect to educational components. Now yet in November of 1975 the court, the lower court then entered its order concerning pupils reassignment. A desegregation plan involving some 27,000 students in 105 schools out of 300 zone schools in Detroit. This desegregation plan was peacefully implemented in the second semester of January 1976. We submit for the purpose of the remedy in this cause, based on the last time we were here that the implementation had taken place. Yet on May 11 of that year 1976, the District Court entered another order and its judgment directed that there be ten educational components to be put into effect system-wide in September of 1976, and each year thereafter for the expanded educational components of reading, guidance counseling, testing and in-service training. And the Trial Court ordered the State, the petitioners, to pay half of the excess cost of implementing the systematic expansion of existing educational components from unappropriated funds of the State Treasure. Now pursuant to the Court’s order, the Detroit Board disclosed that for the previous years 1975, 1976 it had spent $75 million on these four components. It also pointed out that the expanded order of the Court as to these four components would cost the excess of $11.6 for the 1976, 1977 school year. Then on August 4, 1976, the Court of Appeals in Cincinnati affirmed the lower court, compelling the system-wide expansion of existing educational programs to be financed with additional unappropriated funds from the State Treasury. After on successfully seeking a stay, on October 18, 1976 the State Treasure of Michigan, issued a warrant to -- in the amount of $5.8 million of unappropriated State funds in the State Treasury and paid the same to Detroit Board of Education. Now, in affirming the District Court, the Court of Appeals did so and I quote, “Without prejudice to the right of the District Court to require a larger proportion of payment by the State of Michigan, if found to be required by future developments”. And it is this judicially decreed blank check to be filled in each year and presented for payment of unauthorized funds upon the treasury of the State of Michigan that we are asking this Court to reverse.
Warren E. Burger: Is it your view that you must challenge all of it now, the open and the blank check as you call it, or if you did not prevail now do you consider that you would be free to challenge the next order allocating --
Frank J. Kelley: Mr. Chief Justice, I believe that because of the factor that there was no adjudication in this case of any violation, any constitutional violation, with regard to educational programs in the Detroit School system that as soon as the lower court in its remedy got into educational components it was beyond its jurisdiction and in violation of the principles of this Court as laid down in Swann in every succeeding case thereafter, including the last time I was here when the Court at there exceeded its remedy. The Detroit Board does not need a Federal Court order to expand education, nor the only reason for this Court --
Speaker: Is it your position that in the absence of that finding is critical, that the findings that were made would justify transportation remedy and no other is bussing the only permissible remedy in your view?
Frank J. Kelley: We found that any reasonable type of pupil reassignment would be available, because the violation found in the lower court Mr. Justice, had to do with pupil reassignment and that is all that was found, there was no violation regarding education components or financing --
Speaker: Is it your response to my question that that is the only permissible remedy?
Frank J. Kelley: Any reasonable remedy having to pupil reassignment would not necessarily be confined to bussing in my judgment.
Speaker: It would have to be pupil reassignment.
Frank J. Kelley: That is correct.
Speaker: Mr. Attorney General, in that connection I want to be sure. I take it you are arguing basic lack of power in the Court or are you arguing the existence of power but in abuse of it here.
Frank J. Kelley: I believe that following Swann when there was no finding by the Court of the violation having anything to do with educational components but in these desegregation cases it would be beyond the power of the Court in this case. I also feel that in this, that the act of the Court here is also doing violence to the principle of federalism as laid down in the Arvizu case. I also feel that it is doing -- it is in-volitive of the decisions with regard to the Tenth and Eleventh Amendment also in this matter.
Warren E. Burger: Suppose Mr. Attorney General, that the District Court may be finding, an explicit finding that ‘x’ number of children in the schools, all of this based on expert testimony on surveys the usual way. That X percentage of students that were suffering under a handicap -- a language speech handicap; that is problems of gathered life and gathered speech. And that to bring them into the main stream with their peers in school after the reassignment, special speech, remedial speech programs where necessary. There is no such finding here.
Frank J. Kelley: That is correct.
Warren E. Burger: This is really somewhat like Justice Blackmun’s question, are you now challenging the power of the Court to do that, or are you challenging here that no such -- no findings were made that support these specific educational components as they are described.
Frank J. Kelley: Well, I think first of all, let me answer your question, the first part is that, yes, there was no finding, and therefore, it is beyond the remedy part of the court. The second part, I do not believe that this is an exception under Section 5 of the Fourteenth Amendment, where the court could come in and compel payment of money from a State Treasury for some inequity found. I have never known of any statute or any congressional act that lets us do this in the school desegregation case. I have not thought ahead to the principal part of your question however, because I have been concentrating on the fact that there was no violation here and the trust of my argument --
Speaker: Is the similar remedy would have been forbidden in Brown v. Board of Education?
Frank J. Kelley: I believe on the findings of Brown case strictly pupil reassignment, I think it would not --
Speaker: Even though the Court observed that segregated education was unequal?
Frank J. Kelley: If the Court observed, then I think that there is a possibility that something could have been done, but it is not true in this case.
Speaker: Well, otherwise how do you go about finding a constitutional violation in this case?
Frank J. Kelley: Any. Proofs were taken in this matter, in the Detroit case, Your Honor, with regard to this matter of educational components and finance. The Court did not become convinced by that evidence and there were no findings.
Speaker: What is the basis for any remedy at all for any constitutional violation at all?
Frank J. Kelley: The violation in this case was that the Detroit Board was found guilty of unconstitutional pupil assignment.
Speaker: Segregated?
Frank J. Kelley: Segregated assignment.
Speaker: What is wrong with that in the constitution?
Frank J. Kelley: It violates Brown.
Speaker: Well, what does brown say to violation?
Frank J. Kelley: The Brown said, in repudiating Plessy v. Ferguson and that line of cases that --
Speaker: Well, does it include a ruling that segregated education is unequal or not?
Frank J. Kelley: It is inherently unequal under the Fourteenth Amendment.
Speaker: And that goes for this case to?
Frank J. Kelley: I believe so.
Speaker: Well then, what about a remedy? The remedy, inherently unequal education.
Frank J. Kelley: I believe that if you follow the rule as laid down in Brown one or two and it had been in Swann and then in this case that the scope for the remedy is determined by the nature of the violation.
Speaker: The violation is furnishing inherently unequal education.
Speaker: By segregating school children on the basis of the color of their skins, and the remedy is to desegregate.
Frank J. Kelley: That is correct, and I believe that is what this Court said the last time in finding a violation in Detroit only in ordering in a remand, that the plaintiff’s rights in this case were to a unitary school system within the confines of the City Detroit there having been no showing on the record of any finding of an inter-district violation or violation of any district outside of Detroit, and now we are back here again on a remedy where there has been no showing that there was a violation of the financing of the Detroit School system or any violation with regard to educational components or the quality of education within the school system.
Speaker: Wait a minute Mr. Attorney General, Judge Roth in 1972 did find uncontroverted evidence of the need for remedial measures, didn’t he?
Frank J. Kelley: It is not in the orders --
Speaker: “Uncontroverted evidence in the plan filed by everybody, that certain educational components including in-service training, testing evaluation would be essential to any plan.”
Frank J. Kelley: Well, I can only say to you, Your Honor, at this point the Detroit has in fact unitary school system. That in the last year 1975, 1976 we spent $75 million on those four components that the Judge DeMascio now wants expanded in a remedy phase, so that we are committed to this program, it is part of a unitary school system. But if in fact the record as we see it did not show that there had been any constitutional violation of plaintiff’s rights with regard to accusation and finding of inequity in the educational components, or in the quality of the education, or in the financing of the school system, then I believe it is beyond the power of the Court now in the remedy stage to order educational components.
Speaker: Well, isn’t your case and behalf of State officials somewhat different than would be a case that could be made on behalf of the Detroit Board of Education, if they objected to this sort, which I take that they do not? But if they did object, would they could make the same arguments that you have been residing that it goes beyond the scope of the violation that intrudes too deeply into the authority of the local officials that type of argument. But I have thought one of your additional arguments on behalf of your State officials was that conceding that all of those things would be ruled in favor of the Court of Appeals. Nonetheless, the Eleventh Amendment prevented the Court from requiring the State officials as opposed to the Detroit officials to pay for it?
Frank J. Kelley: We feel that Edelman v. Jordan, a case in this Court would apply. Where the Court reiterated the rule that a suit by private parties to impose a liability be paid from a State Treasury is barred by the Eleventh Amendment. Now our Constitution in Michigan provides that no money shall be paid out of the State Treasury except in pursuant of appropriations made by law. The people of Michigan have reposed the appropriation power and they elected -- alleged representatives, they have not waived the Eleventh Amendment in any way and as a result I believe we do have the protection, I think we also have the protection of the language of Arvizu, where the Court reaffirmed the principle of federalism and that limits the injunctive power of federal courts over officials in the executive branch of State level of governments. This was a matter of administering educational system without finding.
Speaker: In Arvizu you were talking about a City Police Official.
Frank J. Kelley: That is right.
Speaker: The Chief of Police of the City of Philadelphia who does not have Eleventh Amendment.
Frank J. Kelley: That is correct, that is actually true but --
Speaker: Mr. Attorney General, if you are correct, as I remember the findings, there was a finding of violation by the State. The State was the guilty of some constitutional violation. Is there any remedy at all that could be ordered against the State?
Frank J. Kelley: Well, the State has already paid --
Speaker: Any remedy that could be ordered by a Federal Court.
Frank J. Kelley: Only having to do with a correction of the remedy with pupil reassignment, and any part of the State could play. Now the State has not asked to submit a plan or the State --
Speaker: Could the State be ordered to pay a portion of the cost of buying the new buses in the transportation?
Frank J. Kelley: The State Board did pay the cost of 200.
Speaker: Could it be ordered to do so?
Frank J. Kelley: It did so, but it did so within the State Law.
Speaker: Could it be ordered to do so is my question?
Frank J. Kelley: Yes, it was ordered to do so, Your Honor.
Speaker: Could it be ordered to do so consistently with your theory of the case?
Frank J. Kelley: Well, as it turned out, the payment of the buses in this case was done within the State Constitution.
Speaker: What I am trying to find out is it under your view of the law there is any remedy which a Federal Court could order against the State? I do not seem to find any in your answer, you say you have done some things voluntarily, but you seem to dispute the power of the Federal Court to grant any effective remedy against the State, is that correct?
Frank J. Kelley: I believe that in pupil reassignment, they could issue any order that was reasonable to correct the federal violation.
Speaker: It including compelling the State to contribute to the cost of purchasing new buses?
Frank J. Kelley: That is correct.
Speaker: You would agree to that?
Frank J. Kelley: I would agree to that. But I would also point out that as far as the Tenth Amendment is concerned, it would also apply here.
Speaker: Mr. Attorney General, I do not understand? You do concede that the State could have been ordered to pay the buses?
Frank J. Kelley: It can be ordered because in this particular situation, there is a law that provides for the State to participate in the payment of buses, it would not be in violation of the State Constitution or the State Law.
Speaker: Do you mean the states waive the Eleventh Amendment in that respect?
Frank J. Kelley: It did not waive it, but --
Speaker: But what if you have a --
Frank J. Kelley: The practical effect we paid for 25% of these buses, Mr. Justice.
Speaker: What about the Eleventh Amendment? What happens to your Eleventh Amendment argument if you are going to concede, the State could have been ordered to pay for buses?
Frank J. Kelley: I do not concede that the State has waived the Eleventh Amendment in the abstract, in the hypothetical questions posed to me by Justice.
Speaker: No, no, it is my question. How do you reconcile your Eleventh Amendment argument, with your concession that you could be ordered to pay for busing?
Frank J. Kelley: We could pay for busing, only into the --
Speaker: No, how can you be ordered in face of your Eleventh Amendment argument?
Frank J. Kelley: I believe that the Eleventh Amendment would have to be argued in that case, and that the State would have to be defended on the Eleventh Amendment, because in any thing that we have done in this case, the State has not waived its Eleventh Amendment. So what is misleading about this case is that we were able to buy the buses within State Law and under the State Constitution by future appropriation methods, and so the issue has never been drawn.
Warren E. Burger: Which plan is it that includes these educational components?
Frank J. Kelley: It was the Detroit Board of Education, Mr. Chief Justice. It was not in the plaintiffs plan.
Warren E. Burger: Accepted by the District Court?
Speaker: Accepted ten, I believe, of the thirteenth -- accepted nine, and put one plan of its own into the situation. And in effect, in a remedy we are asking for a -- it’s a situation where there is a remedy being directed against us without a violation. And I believe that it follows the dictate of this Court in Swann. I believe the federalism argument will apply and I also believe the Tenth and Eleventh Amendment would also apply. Because of our State Constitution in effect that we have not waived nor is there any exception, under Section 5 of the Fourteenth Amendment involved here, where you could order the compulsion of payment of State moneys as you did in the case of -- I believe it was not Griffin but --
Speaker: (Inaudible).
Frank J. Kelley: The Congress’ law, and then of course the --
Speaker: That you bypassed.
Frank J. Kelley: Well, the Court reaffirmed the principle in Arvizu with regard to courts, even though that was local officials.
Speaker: Congress --
Frank J. Kelley: The Fitzpatrick case, I am sorry, Your Honor.
Speaker: By appropriate legislation, it is Congress that is aiming with us?
Frank J. Kelley: Well, there is no statute here that would enable the lower court to use that power.
Speaker: I thought you said that we could use Section 5?
Frank J. Kelley: No, I am sorry, there was no congressional act would enable the lower judge to make an exception. And the case I have referred to earlier was, where there was a Section 5 exception in Fitzpatrick v. Bitzer, where having to do with employment discrimination and there was authority for the payment of State funds and ordered by the federal courts. But we do not have that present in this case, and I just believe that despite the noble purpose the lower court has once again gone into a remedy situation without a violation having been found in the record. And it is beyond the power of the court to do so, and I think it not only fails to follow the principle of a remedy being within the scope of the violation, but it also violates the Eleventh Amendment and the Tenth Amendment.
Warren E. Burger: When the court approved substantially with the greater part of the proposed plan, nine of the 13 parts. As to those nine parts, isn’t that not a finding of the District Court of the need of those components in the total educational process?
Frank J. Kelley: I felt that we would be bound by the record, there was no opportunity at that to point to properly put forth. I do not believe that at that stage the Court was authorized to make a finding, because I do not believe that the records support it and I think the last time we were here, we included this matter. The judgment had been entered and in that judgment there was no showing in the record of a violation.
Warren E. Burger: Well, if the State have not -- did you have an opportunity to challenge the court’s acceptance approval of the plan to the extent it approved it?
Frank J. Kelley: Yes, but not, only to the extent and advisory capacity at that point of the proceedings Your Honor. I do not think that we had the same standing at that point as we hindering a trial of the matter.
Speaker: You are a party to the litigation.
Frank J. Kelley: That is correct.
Speaker: Not just in the amicus or in --
Frank J. Kelley: No, no, that is correct we are a party.
Speaker: So you have got notice, I assume hearing and an opportunity to say what you want to say didn’t you?
Frank J. Kelley: But, I honestly believe that at that point in the proceedings after the trial, and we must remember that the Late Judge Roth was the original Trial Judge in this matter. We are faced with a situation where a succeeding judge came into the matter after the case was tried and the record was developed.
Warren E. Burger: Did it go to Judge DeMascio as soon as it came back on the remand after Judge Roth’s death?
Frank J. Kelley: That is correct.
Warren E. Burger: He has had it ever since.
Frank J. Kelley: That is he has had the case ever since Mr. Chief Justice and that is true. We feel that this case, as far as the Eleventh Amendment is concerned it does follow the doctrines laid down in Edelman where the court reiterated the rule is suit by private parties to impose liability is barred and even though the State has not named to party in this case. Edelman held that where the fact is they compelling your money from the State Treasury, which has what happened here, that the State does by that act become a party and what we have here is a direct compulsion of money from the State Treasury, it is not some ancillary effect or some perspective injuncted relief. In addition to that, I think the language of the Court of Appeals is important when it said that this could be done annually, that we could come back here annually and take unappropriated funds from the State and I believe that we would have a repetition on Eleventh Amendment violations.
Speaker: On the remedy question, would the case be different if the decree instead of saying, you pay 50% of the cost? It said that you provide the books, and you provide the teachers, and you provide the testing materials, one thing that asked you to provide a lot of services and facilities rather than just plain dollars. Would that present a different issue?
Frank J. Kelley: I do not think so. I should also point out that you know, this is not, this School District is among the highest 20% in the State in per capita expenditures. This year, the State of Michigan will appropriate under proper appropriations from its State Treasury to the City of Detroit, $192.5 million, in addition to any local taxation or federal health that they get. They are among -- they hire per capita School Districts in the State. We have not been parsimonious with them. What the petitioners on the State object to is the ordering of unappropriated funds in violation of our Constitution from the State Treasury in the absence of any constitutional violation, that is what we are here for.
Speaker: Well there is a -- there was a finding by Judge Roth that the State had not participated in the situation that existed the violations. That was not challenged in the original Milliken v. Bradley, and I think the opinion said that that finding was left undisturbed, if I recall correctly.
Frank J. Kelley: I do not believe there has ever been a finding that the State of Michigan or any of the defendants for that matter have been involved in a constitutional violation with regard to educational quality or with regard to financing.
Speaker: But there was a finding by both lower courts that I gather is not challenged here.
Frank J. Kelley: With regard to pupil reassignment.
Speaker: Well, that the State had participated in racial discrimination in the operation of the schools, that is what the finding was.
Frank J. Kelley: That is correct.
Speaker: And that is what is not challenged.
Frank J. Kelley: That is correct.
Speaker: And you do not challenge that, you cannot challenge that?
Frank J. Kelley: No, We cannot challenge that, Your Honor. We are only challenging the remedy that is being used here beyond of the nature of the violation and in violation of the Eleventh Amendment. We now have a unitary system in Detroit that I do not believe anybody can question, and the desegregation and the implementation for the elimination that the desegregation has been accomplished, it was accomplished in January, 1976 and there was no complaint from anybody on that score?
Warren E. Burger: Very well, Mr. Attorney General. Mr. Roumell.
George T. Roumell, Jr.: Mr. Chief Justice, may it please the Court. This case is about our remedy for a State imposed condition of the segregation in the Detroit School District that was caused by two separate and distinct defendants. The Detroit Board and the State of Michigan, Footnote 16, Milliken I verifies this, and again in the Gautreaux case at Footnote 13, this Court reaffirmed that finding, two separate and distinct defendants. The State defendants here are attempting to quest this Court’s statements in Swann and Milliken that the nature of the violation determines the scope of the remedy. The violation here is segregation. This is more than unlawful pupil assignment that scope of the remedy had more than just to do with pupil reassignment. In Brown I --
Speaker: It wasn’t that the violation, segregation of pupils based upon their race or ethnic background? There was no claim was there of inequality other than that of inequality among the various schools, was there?
George T. Roumell, Jr.: Yes, Your Honor, in this respect.
Speaker: This was a separate but equal system and that was the violation, wasn’t it?
George T. Roumell, Jr.: Your Honor, the record evidence in this case shows, that as the schools in Detroit evolved one black school, two black schools, three black schools, and so forth. And the black children came into the Detroit system with the same capabilities and with the same potentiality to learn, that by the time they reach the eighth grade in the Detroit schools, on an average the record reveals that the black children were reading that sixth grade level --
Speaker: Was that ever alleged as a constitutional violation?
George T. Roumell, Jr.: That is the effect of segregation in Detroit.
Speaker: Why is it have that effect on black children or not on white children, if it is the effect of segregation.
George T. Roumell, Jr.: Because Your Honor, one of the major reasons for this reading disability is unfortunately teacher perceptions, toward the ability of their student to learn and the record evidence in this case shows that there were low teacher expectations in the developing black schools in Detroit. It was an unfortunate result proven in the record and we referred the Court to our supplemental record at pages 1 to 23 where we lay that out in the violation states. Furthermore, the record also shows Your Honor, that in testing -- our testing proved in many cases to be culturally bias and in many cases unfortunately, resulted in the tracking of black students. Again I referred to the record 1 to 23 of our supplemental record.
Speaker: To get back to my original question, my mistaken and my understanding that the only constitutional violation found in this litigation was segregation of students based upon their color.
George T. Roumell, Jr.: That is correct but the effect.
Speaker: Or assignment of students based upon their color.
George T. Roumell, Jr.: It was an evolving process and the effect of this --
Speaker: Evolving or not that was of constitutional violation.
George T. Roumell, Jr.: That was a constitutional violation.
Speaker: And the only constitutional violation.
George T. Roumell, Jr.: And the State constitutional violation.
Speaker: Well, we are concerned here with only the federal constitutional violation.
George T. Roumell, Jr.: Well, I mean the State defendants.
Speaker: They were also found to be violators.
George T. Roumell, Jr.: Yes, Your Honor, and what we are saying that this was an effect of that violation and it also had an effect as violation record established in the counseling. It institutionalized the concept of bias. For example, in a majority of black schools, for some reason in our aero-mechanic school where we were training children to go into the aircraft industry we had an 80% white enrollment. Black children were not being counseled into that educational opportunity. So one of the purposes of equity is to restore the children where they would have been, but for this vidious (ph) segregation in Detroit. Now in addition, when we get to the remedial stage of the hearings, not only do the records without the exception confirm what I have just said. But in addition, the State defendants through their own witnesses and unless call the Court’s attention to the fact that after the Detroit Board presented their plan, the State was asked to present a critique. And the State in their critique said, yes, we agree to overcome the obstacles to desegregation in Detroit. You must have a counseling program designed to eliminate the effects of segregation. You must have an unbiased testing program and by all means you must have an in-service training program.
Speaker: Where do you find that in?
George T. Roumell, Jr.: Pages 18 to 24 of the brief of the Detroit Board of Education, where we cite their references to the Appendix and actually quote from the testimony of the State defendant’s own witness, plus our witnesses, plus the witnesses of the plaintiff?
Speaker: May I ask you some questions about these programs?
George T. Roumell, Jr.: Yes, Your Honor.
Speaker: As I understand that there are four of them before us. The in-service teacher training, counseling, testing and remedial reading. How long has Detroit had all four of those components in its school system?
George T. Roumell, Jr.: Your Honor, we have had those components in our school system for sometime but we have not have --
Speaker: Wait just a minute. Do you know any major school system in the United States that does not have them or any school system that has not had them for quarter of a century?
George T. Roumell, Jr.: I do not, but the components we are speaking --
Speaker: Let me ask you another question. You see any finding in this record that anyone of those systems was enforced in a discriminatory way?
George T. Roumell, Jr.: Your Honor, two things, if I may answer the question in two parts. The components we are speaking about here are not the routine educational programs in any school system. These are restoration overcoming obstacle programs. They are designed to teach counselor for example, to be prepared in preventing crises. They are designed to open up to rare opportunity to the black children that have been deprived of them in Detroit. The reading program is designed for the first time we have not had remedial reading at the high school level. We are finding children who went through our system, and that segregated school system, not being able to read at the high school level.
Speaker: I understand that, and I am in favor of all of them. But my question is what constitutional violation was found with respect to anyone of these components?
George T. Roumell, Jr.: The constitutional violation was a violation of segregation and --
Speaker: Well, you could give me that answer if I ask you what are the teaching of Mathematics, or History, or Civics, or any other subject in the schools. You could say it is being taught inadequately, the segregation was the cause, could you not?
George T. Roumell, Jr.: No, I could not, Your Honor, for this reason.
Speaker: Tell me why?
George T. Roumell, Jr.: Because the second prong, not only the question of restoring, but overcoming the obstacle. When you bring children into the Detroit system, into a desegregated system, Dr. Foster pointed out and we pointed on our brief in the testimony, and you bring children into a classroom that have all different levels of reading, you incur difficult teaching problems. And eventually the children who have been discriminated against, who have been the victims of low teacher expectations began to daydream and eventually we have the horrible-horrible situation in Detroit of black dropout.
Speaker: My understanding is that 75% of the pupils are black, is that correct?
George T. Roumell, Jr.: 79, Your Honor.
Speaker: 79, has discrimination occurred with respect to all 79% of the pupils of the Detroit school system.
George T. Roumell, Jr.: It was system-wide.
Speaker: System-wide.
George T. Roumell, Jr.: That was the finding of Judge Roth.
Speaker: What is the composition of the Detroit School Board? You have five members of system-wide, don’t you?
George T. Roumell, Jr.: No sir, we have 13 members, sir.
Speaker: Well, what is the composition of that Board?
George T. Roumell, Jr.: At the present time?
Speaker: Yes.
George T. Roumell, Jr.: In terms of race?
Speaker: Yes.
George T. Roumell, Jr.: Nine black, four white.
Speaker: You have regional boards, don’t you, Eight of them.
George T. Roumell, Jr.: Yes, Your Honor.
Speaker: What is the composition of eight regional boards?
George T. Roumell, Jr.: It varies from region-to-region. Some regions are virtually all black, others --
Speaker: How many are eventually all white?
George T. Roumell, Jr.: It is a mixture, Your Honor.
Speaker: But how many have a majority of white members?
George T. Roumell, Jr.: Two, I believe, Your Honor.
Speaker: Two out of the eight?
George T. Roumell, Jr.: Two or three.
Speaker: And they are discriminating against themselves, aren’t they?
George T. Roumell, Jr.: Your Honor, they are not discriminating at the present time. They are trying to correct the remedy.
Speaker: When was this discrimination in these four component programs?
George T. Roumell, Jr.: In these four components, Your Honor --
Speaker: Does the record show when there was any discrimination?
George T. Roumell, Jr.: The record shows that at the time this lawsuit would begun and doing the course of the law school there was desegregation, this evolving process. And the effect -- the effect of this was the reading, the counseling, the problem that I have outlined above produced by the evidence on this record, the hard evidence. And then when we get to the remedial stages, the educators with all the exception including the State’s own witness says, that in order to make desegregation work in Detroit. In order to make it work in Detroit, we have federal programs, and these programs are not spending $75 million for existing programs, these are new programs.
Speaker: May I ask you this. What is the ratio between your counselors and pupils? How many pupils per counselor in the Detroit school system?
George T. Roumell, Jr.: Practically 400.
Speaker: How does that compare with national averages?
George T. Roumell, Jr.: The North Central Association proposed 350.
Speaker: 300-350 is considered the best relationship, Detroit is better than average.
George T. Roumell, Jr.: Your Honor, we have problems in Detroit, we are a large system. We have large dropouts of students. We have tension problem caused by the desegregation and that we are trying to work out. We cannot explain why many of our student, we have the counselors into these system-wide schools, so they could participate in desegregated education. Part of our tools, our entire tools in the educational components are just one tool. Part of the whole tool, there is a whole system of growing children of both races into the various schools, and we have the counselor so their parents know about the availability of these opportunities.
Speaker: May I say this, I am very sympathetic to the problem. Many school systems in the United States are inadequately staffed. I know people in this business who think they ought to be a counselor for every 200 students. Suppose the District Judge had decided that that ought to have been the ratio, and instead of ordering $11 million, he had order 22. You will be here supporting that, wouldn’t you?
George T. Roumell, Jr.: Well, Your Honor, two questions if I may. Number one, he did not decide that and number two, the State of Michigan had every opportunity to say he wasn’t correct in what he was ordering. As a matter of fact, one of the privilege the joint submission to the court, the testing program. They had every opportunity, and nowhere in their record, nowhere in this record had they challenge that these programs are needed to restore, to overcome the obstacles. We are putting counselors in other areas in the Detroit system so that particularly in our middle school, so that our children can gravitate toward these city-wide schools and the magnet schools in order to make desegregation plan work. It is a Detroit situation, it is a way segregation evolved in Detroit, it is the way -- the only way we can remedy this situation. Because if we do not, if we do not utilize these tools the children in Detroit will continue that have the lingering badges of segregation on them.
Warren E. Burger: Mr. Roumell, are you saying in effect that in a school system, which as in Detroit is 79% Negro or Washington, D.C. which is somewhat similar. The need for the counselors is higher than in a school system in some city where you have a much more traditional situation, either all white. Is there a greater need for these programs when you have 79% in the population?
George T. Roumell, Jr.: Mr. Chief Justice, I may say this. I am only familiar with the record in the Detroit situation, and I believe that segregation is a case-by-case litigation. And I believe this is a way it developed in Detroit. I would say Your Honor, that we had 10% black, and if the record showed that because of desegregation of those children, that it would necessary to give them remedial program, restoration programs, so that they can participate in the desegregated aspect of the program, then we would have to have it in that system.
Lewis F. Powell, Jr.: May I just ask you one more question.
Speaker: May I interrupt just a second, Justice Powell. We have taken a lot of your time, so we will extend your time five minutes and the same on the other side, and give Justice Powell chance to pursue his question.
Lewis F. Powell, Jr.: I will just ask you one more, I am afraid I have interrupted you more than my share. Does it concerned at all that Federal District Judge elected for life and not responsible for the people is engaging here in undertaking to run a school system, which another constitution of Michigan and every other State is vested in the School Board and the State Board of Education?
George T. Roumell, Jr.: Your Honor that is not what happened here. Here is what happened here. This Federal Judge, like any other judge in any other type of case heard the evidence and you had the Board of Education coming in and saying, we as trained educators are telling you that we cannot desegregate Detroit in this situation unless we have these components. We have the State defendants coming in and saying, we agree on three of them. We have the State defendants coming in and saying, we are submitting a joint report untested. We agree. Everybody said to the poor little judge. Here it is, and then we have the experts from the plaintiffs. Two men, who have spent their lives, their professional life desegregating, said, yes, Your Honor in order to overcome the obstacle the desegregation. You must have these educational components. Now, Mr. Justice Powell, this is what happened. This did not come from the minds of Judge DeMascio. He did not thought of us, it came from the minds of every person that was in that courtroom, every report. He had no contrary evidence. It had no difference on psychiatrist in an accident case saying, yes, that person says, a trauma as a result of this accident, and there must be a remedy. It is the same principle that happened here in the Detroit case.
Lewis F. Powell, Jr.: May I go back on my own way and ask you one more question? Do these same witnesses present the same testimony before the Board of Education in the City of Detroit, and if so, what was the Board response, what did it? What did it say in its role as the elected representatives of the people to provide a quality education for the City of Detroit?
George T. Roumell, Jr.: Your Honor, I take the issue with the question of quality education. I called it Restoration. Your Honor, we are not teaching French cooking, Home Economics or a Bible as a literature, we are restoring children and we are trying to overcome the obstacles to segregation. Here is what happened. One of these case was remanded. The Detroit Board utilizing a number of people including expert from the University of Michigan, expert from Michigan State, expert from Wayne State University developed a plan. And it was the unanimous view of the Detroit Board that they should present to the District Court as part of the plan of desegregation as another tool just as much as zoning and busing as another tool to desegregate Detroit, then make it work now. And that is what we are talking about here, Your Honor, and that is what the Detroit Board did. And it was voted on, and the vote was unanimous.
Warren E. Burger: Let me go back to the question I put to the Attorney General. I have put to him the question, if there were a finding by the District Court that the language difficulties of these negro students was way below far, it is both in speech and in reading and the finding was made to that effect specifically. And a further finding that it was necessary to engage in these remedial components in order to balance that out, I thought he said, yes, if there had been such a finding that would be s different case from the one here and then I put to him the question, is not the approval by the district courts of the plan submitted by the Board of Education, not conceived by the District Judge but by the Board of Education, is not his approval the equivalent of a finding on that score. And I think he took issue there and said, no, he did not think that was specific enough. What would you have to say about the --
George T. Roumell, Jr.: Five words, Your Honor. It was the finding, and may I respectfully say to the Chief Justice, and the Court, Pages 18 to 34 of our brief set forth those specific findingsaAnd may I point out to the Court that after we made our presentation the District Judge said, go back. Work with this sake and whittle it down and this thing has been refined, it gone through a very refined position with the State participating at all levels. They did not like it, they could have filed motions. They could have brought it to the attention to the Court.
Speaker: Well, Mr. Roumell, isn’t the real dispute here not between the School Board and the District Court, you are really allying with the District Court. It is between the School Board of a District Court on the one hand and the State on the other not over the nature of the remedy so much as to the fact that the District Court has ordered the State to pay unappropriated funds that it might not have chosen to pay to Detroit for it.
George T. Roumell, Jr.: Well, the District Court did not order the State to pay unappropriate fund. What they ordered the State as one of the two joint wrongdoers. They were wrongdoers. To put in these programs into effect and they did not give a blank check. The only order that is before this Court is the order to do that and the representation by the Detroit Board undisputed by the State defendants that it would cost $11.6 million and the State was asked to pay less than $25 a child. Now, frankly if the State wanted to do the evaluation of the test, if they wanted to send in the remedial teachers, if they wanted to send in the counseling help that we needed, and put on the in-service training, they would have been welcomed to do it? But they did not choose to that. They were only ordered just like this Court as ordered State to prepare a transcript for indigents and criminal matters that is all they were ordered to do? This is not a money judgment, and there are wrongdoers.
Speaker: You say it is not the equivalent of a money --
George T. Roumell, Jr.: Absolutely not. Nobody would order to pay every child $200 because of these violations?
Speaker: Well, how about an order to pay the Detroit School Board a certain amount of money in order to assist it in implementing this program?
George T. Roumell, Jr.: Well, he had another choice they could have just put the program in, if they wanted to, but I do not call that as a money judgment. There is no difference in ordering a State to provide an indigent defendant, a transcript or a legal consult, it’s no different. You have to meet the constitutional remedy, nobody, nobody as you serve the authority of the State or the Detroit Board in running an educational system. All the District Court said, if you are going to run an educational system run at constitution and the $75 million the alleged expansion of programs, that is not true. We are not expanding the existing programs. We are establishing new program to restore, to overcome the obstacle, the desegregation in Detroit. This is a Detroit case. What may happen in other cities, unfortunately, I do not know the record in those cities, thank you very much.
Warren E. Burger: We will hear from your colleague now Mr. Jones.
Nathaniel R. Jones: Thank you Mr. Chief Justice, and may it please the Court. The respondents, Ronald Bradley urge that the judgment of the Court of Appeals be affirmed. Before sending forth the reasons for urging that affirmants, I should like to dispose off two assertions that have been repeated in the briefs and in argument here by the State petitioners. First, that the Detroit school system is now unitary and second, that the respondents have been in our oppose to educational adjuncts as part of a desegregation plan. Let me first observe that the Detroit school system is not unitary. The sixth circuit reversed in part and remanded the pupil reassignment portion of the opinion, in so far as it left untouched three regions in the Detroit school system that were contained over 100 schools that were all black. Sixth Circuit said that this situation is intolerable, they recognize it is a difficult problem, but the District Court would have to deal with this problem, it could not leave those schools with these 100 black schools with their students located in the heart of the section of Detroit, which represented the very essence of the violation to go untouched. Secondly, it totally misrepresents the respondent’s position to assert, that respondent’s have been opposed to these educational adjuncts. It is necessary to I think understand the dynamics of the remand proceedings to have a correct understanding as to what took place. The District Court had a pre-occupation with the cart rather than the horse. There was undo attention we felt at that time being placed upon the educational adjuncts and ignoring of the primary element of a remedy which was the desegregation. These are adjuncts, not the primary element of relief and we had to continue to refocus the Court’s attention and the attention of all the parties on the fact that this was a Brown violation and the essential remedy had to be pupil reassignment, elimination of the discrimination of the segregation. And secondly, as an ancillary matter we had to deal with curing the effects, the lingering effects of that primary discrimination in the primary of segregation. The State petitioners take one line out of the cross examination response of one of our experts, Dr. Foster, and escalate that to our primary position. I think it is necessary for us to set that record straight. It will be preposterous, be ludicrous, absurd, hypocritical, and a reflection of the continued concern we have had for the evils of segregation that was addressed in Brown for the respondents to be challenging the inclusion of educational components in a desegregation plan. Our concern was in saying that the cart followed the horse.
Potter Stewart: Mr. Jones, have other courts in devising a remedy for an unconstitutionally segregated public school system, have other courts included in the remedy these educational adjuncts or is this case unique?
Nathaniel R. Jones: This is not unique Mr. Justice Stewart, this is not unique. This is now the time, in fact the HEW as a part of its desegregation thrust authorizes and puts in place educational components. Congress through its legislative enactments has recognized its notional policy. The importance of including educational adjuncts as a part of a desegregation plan for the purpose of overcoming the intangible and the enormous effects of the evils of segregation. So there is nothing unique about this.
Speaker: Has HEW not furnished some expert assistance and equipment in the remedial speech area and remedial reading both, in some of these cases not necessary.
Nathaniel R. Jones: Not necessary but when call upon, they have done it when applications are made, HEW has the respondent. There are a number of --
Speaker: As a remedy for unconstitutional segregation?
Nathaniel R. Jones: Not as a primary remedy.
Speaker: That’s what I am talking about.
Nathaniel R. Jones: No, no.
Speaker: Of course I know about all these programs of remedial reading --
Nathaniel R. Jones: Merely as ancillary assistance to --
Speaker: Well, how about as a remedy for unconstitutional segregation.
Nathaniel R. Jones: No, not as a basic remedy.
Speaker: And how about Court decrees as a remedy for unconstitutional segregation? Have there been many in which it required educational components?
Nathaniel R. Jones: Well, educational components are generally found to be necessary.
Speaker: Well, can you cite me some cases, because I have not been familiar with this until this case?
Nathaniel R. Jones: Yes, I think in the -- in fact in the State of Michigan, in the Kalamazoo case, educational components were made apart Swann. Included educational components as a part of the remedy, and this Court expressly approved it.
Speaker: Are we want to reaffirm here?
Nathaniel R. Jones: That is correct.
Speaker: I have these very components that were involved here?
Nathaniel R. Jones: That is correct.
Speaker: Reaffirmed in Swann.
Nathaniel R. Jones: That is correct and I think Your Honor, I like to call your attention to the brief filed by the Justice Department by the Solicitor General at page -- both at page 18 in the bottom paragraph in which the government recognizes that racial discrimination and the operation of schools often has a pervasive effect on the educational process, and on the hearts and minds of students. And it goes on in note that the remedial decree should seek to alleviate these intangible effects, no less than to alleviate the assignment of students to race the identifiable schools. Now on page 20 of the government brief, first paragraph. The Solicitor General puts his finger on the number of problems here, the problem that the State of Michigan has and that is the confusion, which it has between goals and tools. And certainly as the government contends, that an approach, the approach they suggest would unduly constrict the flexibility of a court charged with creating a decree that will eliminate all of the effects of the racial discrimination. It goes on to note that Congress has provided in 20 U.S.C. 1703 that no state may deny equal educational opportunity by failing to take affirmative steps to remove the vestiges of discrimination. And petitioners would deny district courts the tools needed to achieve that goal.
Speaker: What if the District Court here had ordered the precised educational components that it did, but declined to require the State to pay any money towards them? Would the School Board and the individual plaintiffs have still supported the decree?
Nathaniel R. Jones: I cannot speak for the School Board and the State, Your Honor.
Speaker: How about the plaintiffs?
Nathaniel R. Jones: The plaintiffs would have, as we did, insist upon first instance the desegregation of the school.
Speaker: Say that the adjuncts were not enough in effect? The plaintiffs would have continued to insist as you earlier mentioned, that the adjunct programs were not the essential of the decree, if the pupil that were reassigned by itself was not carried out.
Nathaniel R. Jones: Well, the plaintiffs will continue to insist that somebody, some agency of the State address these secondary problems that are part of the bringing about the creation of unitary systems. In fact, we learn as we grow, and one of the lessons that has been learned through 23 years of litigation and efforts to desegregate school systems is that there are certain problems in connection with creating unitary system that have to be faced, and --
Speaker: Mr. Jones, may I interrupt just for a minute. The question Mr. Justice Rehnquist was asking, I am looking at the Appendix that is filed to the opinion of the Court of Appeals, page 889(a). This Appendix states that the financial impact of these orders, they are the orders of the District Court could easily destroy the educational program of the Detroit school system. The financing of these components by the Detroit school system, would only mean a concomitant elimination of existing programs. As I understand that that came from a brief filed by the Board of Detroit Education, that suggest to me that the city board had to have State assistance. If you hadn’t had State assistance, this suggests that your program would have been destroyed. What is your comment about that?
Nathaniel R. Jones: Your Honor, the concern of the plaintiffs.
Speaker: Is it plaintiff, the School Board or --
Nathaniel R. Jones: No, the School Board is the defendant.
Speaker: Yes, but this is the quotation as I understand it from the School Board brief before the Court of Appeals.
Nathaniel R. Jones: Well, I am, I am probably the one to comment on the brief of my adversary.
Speaker: Right, oh, yes. Well, I will ask you this. We are talking about it. If your adversary was correct in saying that the Court order that added all of these ingredients into the educational program in Detroit would destroy the school system unless the State came to the relief. Do you think the District Court has that power?
Nathaniel R. Jones: Well, I cannot accept the premise.
Speaker: Oh, you do not think the system would have been destroyed?
Nathaniel R. Jones: No, I do not. That (Inaudible) us quite often, and I would not accept that premise. But I think the Court clearly have the power.
Speaker: The power to destroy the school system.
Nathaniel R. Jones: No, not the power to destroy the school system. The Court clearly have the power under Ex parte Young to issue an injunction to require agents, an agency of the State -- the State officials, to conform their future behavior and future conduct, to conform and comply with the commands of the Fourteenth Amendment.
Speaker: Now, does that require funds that were totally beyond the means of either the City or State to provide?
Nathaniel R. Jones: Well, I cannot accept that assumption. I think Griffin v. Prince Georgia’s County speaks that question.
Speaker: I am not talking about desegregation, I am talking about the determining the content of educational program of a school system that is supported by money raised from taxpayers.
Nathaniel R. Jones: Your Honor, the Court was not determining the program of the Detroit school system. The Court was faced with the problem of how do I bring about a conversion of an unconstitutional school system and the one that is constitutional. He invited the parties to submit plans. Plans were submitted by both the State, by the Detroit Board and the plaintiffs. The State participated in that process and they reached the conclusion, and the Court adopted, and included in to an overall plan prepared by the Court, what in his judgment based upon record evidence would necessary to accomplish the legitimizing of that unconstitutional school system. And that is what we are concerned with, what power did the Court have and I criticized him that the Court have that power.
Warren E. Burger: Mr. Jones, referring to that Appendix that Justice Powell had just read from. That is attached to the opinion of the Sixth Circuit. The authorship of the Appendix at least does not appear, is that something written by the Court by the Sixth Circuit or --
Nathaniel R. Jones: Detroit Board informed us Mr. Chief Justice about that.
Warren E. Burger: That was submitted by the Detroit Board through the Sixth Circuit?
Nathaniel R. Jones: That is correct.
Warren E. Burger: And the Sixth Circuit at least adopted it to the extent of attaching it as an appendix to it -- is it the text is an appendix to the opinion or is it --
Nathaniel R. Jones: I cannot explain the Sixth Circuit, Your Honor, I do not know.
Warren E. Burger: Was it there when the opinion came down, since you were in the case?
Nathaniel R. Jones: Yes it was.
Speaker: Top of Page 180(a) that Mr. Chief Justice is referring.
Warren E. Burger: Oh yes, they make a reference to it. I just wanted to be sure of the authorship of it, because it seemed to be hanging in somewhat in midair in this form. That does explain at the top of 180(a). Thank you, Mr. Jones.
Nathaniel R. Jones: Very well, thank you Mr. Justice.
Warren E. Burger: Mr. Attorney General.
Frank J. Kelley: Mr. Chief Justice, I believe we will waive any rebuttal and thank the justices.
Warren E. Burger: Do you have questions?
Speaker: The only thing I would like to ask to Mr. Attorney General, I noticed that the government, page 21 of its brief, takes issue with a statement of yours at least they suggest in their Footnote 8, that you err in asserting that the Charlotte-Mecklenburg decree was limited to student assignments. And they cite 318 F. Supp. 802 for the sentence in Swann that tells the District Court’s order included a requirement of in-service training of teachers, and the creation of Bi-Racial Advisory Committee to help the school system begin the process of desegregation. Are you with the government right? I have got the Federal Supp. 802 before me.
Frank J. Kelley: Well, you are having me the slightest advantage. We believe that the purpose of this case will rely on our brief.
Speaker: You do.
Speaker: Mr. Fischer, let me ask you a question related to my brother Brennan and that is, in the Swann v. Charlotte case, was the State of North Carolina ordered to pay any money to pay for those facilities so far as you know?
Frank J. Kelley: I know, as a matter of fact they were not ordered to pay any money.
Speaker: And was the propriety of the remedy beyond the student reassignment an issue here in Swann v. Mecklenburg? There is no mention -- there was no mention of anything --
Nathaniel R. Jones: As I recall reading and memorizing that matter beyond pupil reassignment.
Speaker: Or any of that, Mr. Attorney General.
Speaker: This sort of thing is not noble, isn’t that? The sorts of tools that we are talking about, these four things apparently are not noble in desegregation.
Nathaniel R. Jones: Well, certainly not, Michigan has pioneered many of them and we do though -- do them and we would like to do them, but we would like to do them within our constitution and within the framework of legislature and not have the lower court sitting in a position of a super school board when it is beyond the violation. Thank you.
Warren E. Burger: It is too late to help you with the answer to that question that was put to you but once I was asked by Justice Black this similar question, I said sometimes Assistant Attorney Generals argued cases but they do not always prepare all of the papers themselves.
Nathaniel R. Jones: Well, you can always learn them I thank you.
Warren E. Burger: Thank you gentlemen. The case is submitted.


Earl Warren: Number 119, William J. Murray III et al., versus John Curlett et al. Mr. Kerpelman.
Leonard J. Kerpelman: Mr. Chief Justice, Your Honors, this Lord's Prayer and Bible reading case, which is before the Court today, has perhaps a unique importance for all of us. The reason is that all of us have certainly at some time, been concerned with philosophical meanings attached to our existence here, see the significance of that existence. And, all of us have no doubt, directed ourselves to resolution of questions of the goals and means and functions of mankind and all of us have thought and contemplated and no doubt prayed. Such contemplation and thought, it is in the very nature of man to perform, sapient man, wondering, inquiring man. And the nature of man being what it is, man has developed over the long centuries complex and subtle systems of philosophy and out of these systems, and out of the historical knowledge and out of faith, man has constructed complex and subtle systems of religious belief. And out of these systems of religious belief, man has constructed doctrine. At the same time, extending back through painful ages, man has concurrently developed differing and no less subtle and no less complex systems of government based at different times and different places on different principles. Perhaps, the noblest of all of these systems of government is that system embodied in the enlightened and libertarian Constitution, including the Bill of Rights of the United States of America. In fact, the principles embodied in this document are probably so noble and so ennobling that without doubt, many of us experience some difficulty in daily, and drawing ourselves up to the perpetual measure of their standards. One of these standards, of course, set forth in the Constitution and the Bill of Rights as interpreted by this Court, is the principle that the church and the state in this country shall remain separate and apart and that in fact, there shall be a wall of separation between them which shall be maintained high and impregnable.
Potter Stewart: I read the First Amendment. I had never read that language in it. What's it say? What's the First Amendment say in this subject?
Leonard J. Kerpelman: That Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof, Mr. Justice. At any rate, it seems that my conclusion, I respectfully say, Mr. Justice, is that the First Amendment has been interpreted to mean that government shall not sponsor or favor any one religion or religion in general and shall -- and that religion shall not interpose itself in matters of Government.
Potter Stewart: But here, you have your Fourteenth Amendment case, don't you?
Leonard J. Kerpelman: Yes, Your Honor. The First Amendment as applied to the states by the Fourteenth Amendment, Cantwell versus Connecticut and that line of cases. This particular case concerns a rule of the Board of School Commissioners of Baltimore City which is found at page 4 of the petitioner's brief and it's very short, I'll perhaps read it to the Court. “Opening exercises,” this is a rule drawn under the administrative powers of the local School Board, and this rule has been in existence, I believe, since about 1905. “Opening exercises, each school, either collectively or in classes, shall be opened by the reading with that comment of a chapter in the Holy Bible and/or the use of the Lord's Prayer. The Douay version may be used by those pupils who prefer it.” This rule, before the advent of this case was amended as follows. “Any child shall be excused from participating in the opening exercises or from attending the opening exercises upon the written request of his parent or guardian.” If Your Honors please, I feel that the reason for the First Amendment interpretation having been at some time stated to have erected a wall between church and state is clear. It stretches back as far back as the history of governments, and particularly as far back as the history of religions themselves. The cruel and arid features of this history were alluded to in Engel. They were discussed in Torcaso. They were treated at great scholarly length in the Sunday Law cases.
William J. Brennan, Jr.: Mr. Kerpelman.
Leonard J. Kerpelman: Yes, Your Honor.
William J. Brennan, Jr.: Is the version of the Lord's Prayer actually in the record?
Leonard J. Kerpelman: Your Honor, it is not. The -- there was no testimony taken in the case and, therefore, the version which was used could not have been adduced. This case was before the Court on demurrer and the allegations in the petition did not allege the version which was used.
William J. Brennan, Jr.: I noticed that in the regular -- the section, Douay version may be used by those pupils who prefer it.
Leonard J. Kerpelman: Yes, Your Honor.
William J. Brennan, Jr.: Is there anything in the record that shows how they --
Leonard J. Kerpelman: How they determine that?
William J. Brennan, Jr.: Yes.
Leonard J. Kerpelman: No, Your Honor, there is none. The record would not have that because the case was on demurrer. No evidence was taken. I -- the rule itself seems to be an invitation to a short religious war every day. I don't know exactly how it's arranged. I suppose according to the feeling of the majority, the pupils or, perhaps, the feeling of the teacher in the particular instance.
Arthur J. Goldberg: Mr. Kerpelman, (Inaudible)
Leonard J. Kerpelman: Your Honor, I can see no constitutional objection to the study of religion, to the study of history, to the study of biblical history, for example, to the study of the Bible as a book of literature. What we have here, of course, is a religious ceremony set up by the school, conducted by the school and, by very strong implication, having the support and the favor of the school. And, the ceremony is sectarian as any ceremony must be. It has apparently become impossible in modern age with the numerous sects and the numerous religions to have a ceremony which is not sectarian. They were not able to accomplish it, I would say in my own mind, even in the Regent's Prayer in New York and where we have a ceremony set up that is a different thing from a study. We expressly disclaim any objection to any study of any sort, including comparative religions or whatever they might be called in junior high school or high school phraseology, any subject.
John M. Harlan II: There's one factor in this case that was present in Engel that was not present here. There's no suggestion that the state itself composed this prayer, is it?
Leonard J. Kerpelman: No, Your Honor. As I read Engel, the phrase “composed or sanctioned” would seem to include -- sanctioning would seem to me to indicate choosing or favoring or allowing or permitting any particular prayer. And it seems to me that to interpret Engel as having eliminated only composed prayers overlooks the language in Engel concerning sanctioned prayers.
John M. Harlan II: (Inaudible)
Leonard J. Kerpelman: I -- well, this is implied from the rule itself, Your Honor, and from the selection of the exercise, as I recall. I don't believe our petition called it that. However, the respondents' brief did call it a devotional exercise at one point. I'm fairly certain, I believe so. The conclusion that, it seems to me that the courts have come to in this country, is that, to quote Mr. Justice Rutledge in Everson as he was reiterated in Engel, “the price of religious freedom is doubled. It is that the church and religion shall live both within that freedom and upon that freedom.” Yet, in spite of the fact that the doctrine has become established, it would seem to me that the church and the state should be separated. There has grown up this practice in the Maryland schools and it's been tolerated and blinked at for so long that the respondents have now denominated a tradition. Well, I don't think, if Your Honors please, that we can repeal the Constitution by this particular means. A matter which is once unconstitutional does not become constitutional by being allowed to persist, even though it has continued almost as long as Plessy versus Ferguson can continue -- had continued. And, this particular practice has continued without even a Plessy versus Ferguson to support it. Our society develops. It matures. Its institutions develop. They change. The practice which one generation had not the courage to question, much less overturn, seems to me must, if we are to advance, be questioned by the next generation. And that generation must even summons up the courage to overturn certain practices within the constitutional framework when the issue is put to them. Of course, we are asked how can a religious men have such an attitude, and we are told that the answer to this is that those who urge the petition of the petitioner -- the position of the petitioners here not only are not religious but they have set themselves in opposition to religion. And I respectfully say, if Your Honors please, that this is completely untrue. It is unreasonable to say this as it is unreasonable to say that a person who is opposed to unreasonable searches and seizures is opposed to law enforcement, or that a person who is opposed to censorship is opposed to purity. Arguments such as this, I feel, lift a continent of all the stone. They are non-sect declarations. The respondents, it seems to me, perhaps have the mark of being something like non-religious for they have said in their brief at page 28 that this ceremony has come to have a meaning which transcends mere religiousness, and I don't want to -- I don't wish to cast reflections on a particular language that they chose but it seems to me that infinity plus one is still infinity and I don't know that there is anything which can transcend religiousness. The petitioners certainly do not urge that there is any such thing. The petitioners are merely here asking that an injury which they have suffered and which they say is guaranteed under the Constitution be redressed. The injury is very real. Now upon the pleadings in this case which are before the Court on demurrer, there can be no argument but that the petitioners have suffered a substantial personal detriment. They claim and the respondents by their demurrer, have admitted that William Murray, the infant plaintiff, have suffered substantially from the conduct of these exercises, specifically the allegation state that he has lost cast, that he has been regarded with aversion by his fellows, that he has been subjected to reproach and insult and that doubt has been raised as to his morality and good citizenship. And, though all these injuries may be in the psychological or the intangible sphere, yet, they are certainly as substantial an injury as one could perhaps allege.
Potter Stewart: Is this a -- the case is here on a demurrer, on a --
Leonard J. Kerpelman: Yes. Yes, Your Honor.
Potter Stewart: So, there's no evidence at all in support of those allegations and on the contrary, there's no evidence at all that any child or that the parents of any child wanted their children in the free exercise of their religion, wanted their children to say this morning prayer at school, is there?
Leonard J. Kerpelman: Well, Your Honor, I think it may be easily assumed that a majority of parents would have -- would like to have their children say this prayer in the school.
Potter Stewart: Well, that if we strike this provision down, we're interfering with the free exercise of their religion, aren't we?
Leonard J. Kerpelman: Well, Your Honor, I think that the -- well, for example, the police power can yield to the necessity that the public be protected from violence. That is -- freedom of speech would yield to the police power. Freedom of assembly would yield to the right of the public to have its property protected against riots. But, this is a new concept to me that a person's freedom of -- that a person's free exercise of religion or his right to be unburdened or free of an establishment of religion must yield to the free exercise of religion of other parties when this other parties are in the public school, they're saying to the petitioner, “give us your support, give us your taxes, give us your faith and confidence and trust in the school,” which incidentally the petitioners do give wholeheartedly, and they say that the taxing part of what they give is but a mere incidental to the other things that they give which is a belief in the importance in our society of secular public schools. They give all these. The majority says that, “in return for this, we wish to run a religious exercise which caused you -- causes you these substantial detriments.” I don't think that the free exercise of the majority -- the right to the free exercise can work that way because, in exercising its right, it is establishing a religion in the public school. By establishing the religion in a public school, they take away of course the right to the petitioners to be free of an establishment.I don't believe --
Potter Stewart: Your entirely free under these regulations to your client to just walk away from the ceremony.
Leonard J. Kerpelman: Well, Your Honor, now that I believe is more an illusory out than a real one.
Potter Stewart: Well, it says, “any child shall be excused from participating in the opening exercises or from attending the opening exercises.”
Leonard J. Kerpelman: Yes, Your Honor.
Potter Stewart: “On the request of his parent or guardian.”
Leonard J. Kerpelman: Right.
Potter Stewart: You're free to walk away.
Leonard J. Kerpelman: Yes, Your Honor.
Potter Stewart: Not participate in any way.
Leonard J. Kerpelman: Yes, Your Honor. And then, because of a matter which is not in a secular sphere, which you can't discuss in class in a rational matter because -- manner because religion cannot be in a last analysis rationale but, because of a matter which is in the spiritual sphere, this child who chooses to walk away, and I think it can be admitted, he would have no answer to the people who would think that this was a peculiar or an ungentlemanly or perhaps a bad thing to do. He would have no answer because his answers are all within the heart of the people that make these allegations. He has no answer. This is not a secular matter. When he walks away, he then becomes subject to whatever sanctions school boys may impose. And, I might say, to whatever sanction school teachers may impose and I might say this, Mr. Justice --
Potter Stewart: There's no one -- of course, no evidence because (Voice Overlap) --
Leonard J. Kerpelman: No evidence sir.
Potter Stewart: All we have is the complaint of the petitioner.
Leonard J. Kerpelman: But, where we put the proof, we would prove that these acts of coercion were very substantial, that this boy was spat upon, insulted, assaulted. The criminal docket of the Northeastern Police Station in Baltimore City will show that certain persons were found guilty of assaulting him when this case gained notoriety and he's an infant. This boy is now in his junior year.
Potter Stewart: Are you sure? I was assaulted when I was an infant at school many times, weren't you? I mean, --
Leonard J. Kerpelman: Yes, Your Honor.
Potter Stewart: -- may be no connection between (Voice Overlap) --
Leonard J. Kerpelman: Yes, Your Honor, but if it's on a rational matter, “did you steal Johnny's marbles?” Or “Did you win the game or did he win the game?” It's something which the Constitution I don't think has set out any standards.
Potter Stewart: The reason I asked the -- the first question I asked you sir was this, that it seems to me that there are two provisions affecting and relating to religion in the First Amendment: the Establishment Clause and the Free Exercise Clause, and some of us tend to lump this all as one doctrine. The fact is that these two separate and distinct clauses sometimes run into conflict with each other. They're not one. They're two different things and in some areas, they conflict. And if, as you say, the evidence on the -- remanding of this case or if this case should ever be tried, if the evidence should show that the mass majority of the children in the Baltimore school and their parents want to, in their free exercise of their religious beliefs, want to open their school day with prayer, then to prevent them from doing that would be to interfere with the free exercise of their religion. Isn't that correct? That --
Leonard J. Kerpelman: But, under the Establishment Clause --
Potter Stewart: -- that's very literally.
Leonard J. Kerpelman: Well, Your Honor, I can't quite follow that, and I say that respectfully, because, under the Establishment Clause, they have no right to establish a religion.
Potter Stewart: Precisely but, under the Free Exercise Clause, they do have a constitutional right to pray when and where they want to or not to pray if they don't want to.
Leonard J. Kerpelman: Yes, Your Honor, they have.
Potter Stewart: That's --
Hugo L. Black: Do I take that's correct?
Potter Stewart: -- precisely my point.
Hugo L. Black: Is that correct?
Leonard J. Kerpelman: Well, it seems to me --
Hugo L. Black: Would somebody have a right to come in here this minute in this public institution and interrupt our proceeding, let's say, they wanted to pray, and would that be to deprive them of their free exercise of religion to say that they could pray only outside or somewhere else?
Leonard J. Kerpelman: Thank you, Mr. Justice. As I was thinking in terms of a silent prayer but, certainly, Mr. Justice Black, if someone came in here and interrupted the proceedings of this Court that would certainly not be within their constitutional rights.
Hugo L. Black: I don't think the Amendment says that a person got a right to go anywhere in the world he wants to at any time and then intrude on other places where they have set apart for something and dedicated to something or to express views of any kind.
Leonard J. Kerpelman: Yes, Your Honor.
Hugo L. Black: Openness or to interrupt the people.
Leonard J. Kerpelman: Yes, Your Honor.
Hugo L. Black: Like public expense where the public's money that's against it.
Potter Stewart: There's no question here of any disturbance of the peace or disorderly conduct, we're not in that kind of an area in this case at all, are we?
Leonard J. Kerpelman: No, except, analogously, I feel that a person comes in and makes a speech which constitutes disorderly conduct. Although he has a right to free speech, he has a responsibility to conduct himself in an orderly manner.
Potter Stewart: And if the sign says, “Keep off the grass”, he is -- he can be prohibited from walking on the grass --
Leonard J. Kerpelman: Yes.
Potter Stewart: -- even if he wants to walk on it to make a speech. But, we're not in that -- this isn't that kind of a case at all, is it?
Leonard J. Kerpelman: Your Honor, I feel that, under Your Honor's hypothesis, it -- in a way is. Here, the majority in a class wishes to establish a religion. Question, can they res -- establish a religion or does that reach one of the constitutional rights of the minority? After all, the --
Potter Stewart: Now, these are constitutional rights that apply to all of us, whether we're in the minority or the majority, whether we're 1 or whether we're a 1,000. And, I'm only suggesting that the Establishment Clause and the Free Exercise Clause often run -- collide with each other. They run head-on into each other and it's fallacious to consider them as one of the same thing. They're two separate, distinct provisions of the Constitution and they often, as in this very case, if you're right that a vast majority of the students and of their parents affirmatively want to, in the exercise of their religious beliefs, want to open their school day with prayer, then to prevent them from doing it in the name of the Establishment Clause is to interfere with the free exercise of their religion. Now, I'm not suggesting the answer. I'm simply --
Leonard J. Kerpelman: Yes.
Potter Stewart: -- suggesting that it's a fallacy to lump all this together and say it all just stands for separation of church and state. If the Constitution doesn't say so, it has two particular specific provisions.
Leonard J. Kerpelman: Well, Your Honor is clearly more the legal scholar than I am. Yet, it seems to me that the prohibition -- prohibitions contained in the First Amendment are two prohibitions. They're prohibition against interfering with someone's free exercise, they're prohibition against the establishment, and these prohibitions operate to the benefit of the minority. They cannot be used as a sword by the majority. And, I see Your Honor disagrees with it.
Potter Stewart: Well --
Leonard J. Kerpelman: But that is our conception of the case.
Potter Stewart: They're constitutional provisions. They're a sword, if you want to call them a sword, they're a cloak if you want to call them that, but they're no more available -- no more freely available to the majority than to the minority, to one and to a million. It's generally minorities who invoke these rights because, usually, majorities don't have to.
Leonard J. Kerpelman: Correct.
Potter Stewart: But --
Leonard J. Kerpelman: The majority has its legislature and the majority has --
Potter Stewart: The provisions are equally applicable to all of us.
Leonard J. Kerpelman: Yes, Your Honor. However, it is --
Arthur J. Goldberg: It seems that the --
Leonard J. Kerpelman: Yes, Your Honor?
Arthur J. Goldberg: (Inaudible)
Leonard J. Kerpelman: Clearly.
Arthur J. Goldberg: (Inaudible)
Leonard J. Kerpelman: Yes, Your Honor. It seems to me, also, that the compact of the Constitution says that if the minority has a right, we don't have noses and then if there are more persons opposed to their having that right than not having it, that we take the right away from them. It seems to me that that must be a guiding constitutional condition. Otherwise, we have no amendments to the Constitution left. The -- as I have said, the petitioners are in the position where they wish to give their support to the schools. They want in return, that the school should treat its secular matters only as they feel that the school is called upon to do. They don't want -- wish to have any dogmas in spiritual matters thrust upon the children who attend the schools and no matter how retiring or mild or neutrally worded any of these things may be, under the condition of religions in our pluralistic American society, these prayers are always secular -- sectarian, I'm sorry, as was the prayer in Engel. This, of course, is the Lord's Prayer. It seems to me it's a stronger situation than Engel. The Lord's Prayer is taken directly from the New Testament and it's not a matter which the religiousness of can be very much disputed. There's no question that it's a sectarian religious ceremony, it seems to me. The authorities that I have been able to find in the theological field seem to be agreed that the Lord's Prayer is a Christian prayer and even within the Christian denominations, there is difference as to which version shall be used. The Douay omits the “Thine is the kingdom and the power and the glory forever and ever, Amen”, as I understand. The matter is something which we run into head-on every time that we try to have a religious ceremony conducted by a government or by a government agency. We give sanction or favor, as was prohibited in Barnett, as was prohibited in many other cases, in Torcaso, in McGowan. And give sanction or favor to one religion as opposed to other religions or we give sanction or favor to religion as opposed to non-religion. This case, of course, makes everyone uncomfortable because a large majority of the country loves this prayer. It's a beautiful prayer. Certainly, the large majority of the country loves the literature of the Bible and it's certainly one of man's outstanding works and therefore, it gives us I think a great deal of discomfort to have to face the fact that perhaps, this ceremony which most people adore is an unconstitutional ceremony because it's a religious ceremony and it is not a secular study. There is no reason, and I've seen it lamented many times, it has been lamented in the brief of the respondent in the Schempp case which follows that -- in a footnote, I think it was Footnote 9, referred to in footnote -- to the respondents' brief -- to the Attorney Generals' amicus brief, that study of the Bible, study of religion and religiousness is out of the schools, that things are too neutral. Baltimore Sage who is well-known, General W. Johnson, I recall, writing a letter to the newspaper about a year ago lamenting the same fact when this issue first came to the Court that the trouble with biblical study in the school is that there are too many sects who are contesting and as a result, he lamented the fact that every time study of the Bible as literature or as history or as historic or as cultural history is tried in the schools, that these various sects object to it. That is not the fault of the petitioners. It seems to me that perhaps, the resolution of this matter, if this practice is unconstitutional, is for the sects to not be so selfish, self-centered on their own dogmas that they would raise these objections to the study of the Bible in school, for the use of the Bible in English class, to the study of religions. We have no objections. There can be no constitutional objection when it is carried on as a secular study. I would like to get to a point which the --
Potter Stewart: The complaint there rely entirely on the Establishment Clause?
Leonard J. Kerpelman: No. Its -- it relies on the Establishment Clause and the Free Exercise Clause and Your Honor is about to ask, I assume, how can an atheist freely exercise his religion.
Potter Stewart: No, I understand that you can't --
Leonard J. Kerpelman: Jumping --
Potter Stewart: I know about the Torcaso case and I join you. You're entirely free to disbelieve in God.
Leonard J. Kerpelman: Yes, Your Honor. I guess I'm getting a little gun shy with this case. People have been attacking me for a long time.
Potter Stewart: (Inaudible) -- you have a constitutional protection to disbelieve in God, don't you?
Leonard J. Kerpelman: Yes sir. The petitioners have put forth an argument, which I would like to treat of and that is that they have said that this ceremony should be allowable because it is not a very religious ceremony and they have said that it actually transcends religion. They used the language saying that the religiousness of a ceremony is a matter of degree and I suppose the implication is that nobody would argue, for example, that to conduct the protestant communion service in the school would be unconstitutional. Nobody would argue that to conduct a catholic mass in the school would be unconstitutional, but they have put forth the argument that this ceremony is only somewhat religious and that it has only a shade of religiousness. Well, Your Honor, I think that that argument Your Honors must feel, the Constitution recognizes no somewhat abuse of due process, no somewhat illegal search, recognizes no somewhat restrictive restriction on free speech or the press, either a matter is a restriction of a constitutional guarantee or it is not. Now, what surprised me as I read further in the respondents' brief was that, after arguing that this matter of religiousness can take on any shade in a spectrum and be slightly religious or extremely religious, they then go on to argue that the dissenter is right to be free from coercion does not exist. That he has an absolute right to endure the coercion. They said on pages 32 and 33 of their brief, “The dissenter cannot ask that the source of disapproval or the alleged factors of compulsion be eliminated so that he will be spared the burden of any disapproval. It makes no difference that the sensibilities and feelings of children are involved.” Still quoting, Your Honors, “This is, by choice, the dissenter's problem. Adult or child, the conviction of the dissenter must of necessity be sufficiently strong to permit him to effectuate his dissent and to bare the disapproval of others.” And, I say, Your Honors, that I am shocked by this argument. Here, they have admitted that William Murray, junior high school boy when this case was filed, still an infant at the age of about 15, a junior in high school has been regarded with aversion. He has been subjected to insult. His morality has been brought into question. His good citizenship has been brought into question and although the respondents argue that the religiousness of the ceremony is a matter of degree, that the necessity for the infant to endure this compulsion is an absolute.
Arthur J. Goldberg: (Inaudible)
Leonard J. Kerpelman: Your Honor, it does --
Arthur J. Goldberg: (Inaudible)
Leonard J. Kerpelman: -- seem to me that that would impinge on the constitutional prohibition against an establishment. There are some question as to whether this is a recognition of religion or all religions but, it seems to me, it's quite possible that that would be a constitutional procedure, providing it's not something imposed from above by the school authorities entirely but something which perhaps wells up from within the classrooms. I don't know. Of course, unfortunately, I feel that I cannot completely answer the question that is not in this case, but it seems to me that such practice would probably be a constitutional.
Hugo L. Black: I suppose that there's no right to weigh that the law could enforce prohibition against a man thinking and praying silently to himself, is there?
Leonard J. Kerpelman: No question about it, Your Honor. Thoughts come to men unbidden. Prayers come to men unbidden. A man sends them onto his maker frequently as a prayer when they come to him. No one certainly can -- prayer itself cannot be unconstitutional. What we ask in this case is that the school can find itself to secular functions that it leave matters of spiritual training, spiritual faith, matters of religion to the home, to the schools, to the religious institutions which have always, by American tradition, had great honor in this country and which always, by the American tradition, all of us have had respect for the power of it. And, that is not what we object.
Potter Stewart: Are you familiar with the Northwest ordinance?
Leonard J. Kerpelman: I'm afraid not.
Potter Stewart: Because I think you're -- there's no point in getting an argument on history, but I think the religion in the schools have historically been fairly closely connected historically.
Leonard J. Kerpelman: Oh, yes, Your Honor. Your Honor is referring to the fact that these schools originally were set up as adjuncts of -- usually of church institutions. When they were cut loose from the church institutions, they still had a great deal of sectarianism connected with them. That was better than new schools, I would say, Your Honor, but certainly not better, in present day society, the schools without a sectarian or a religious sector orientation. No, I say it's not better than a school without sectarian orientation. I would rather see a school set up with secular orientation. Leave the sectarian matters of faith to the home and to the priesthood and the rabbinate and the protestant clergy.
Arthur J. Goldberg: Well, there's a constitutional right to have a parochial schools (Inaudible)
Leonard J. Kerpelman: Yes, Your Honor. Yes sir.
Arthur J. Goldberg: You're not arguing against that constitutional right.
Leonard J. Kerpelman: No, Your Honor. But in my opinion, I think that the preservation of secular schools, teaching secular subjects only is very important to our society. I personally feel that when doctrinal subjects pervade the teaching of secular subjects that it's bad for the doctrine and it's bad for the secular subjects, but that is a matter of opinion.
Arthur J. Goldberg: You're expressing a personal opinion.
Leonard J. Kerpelman: An entirely personal --
Arthur J. Goldberg: Constitutionally irrelevant.
Leonard J. Kerpelman: Yes, Your Honor, absolutely. There certainly is no constitutional prohibition against parochial schools.
Potter Stewart: What if 99% of the children with the consent for participation of their parents, what if there were no law, no Baltimore law or ordinance whatsoever, but in the Baltimore school, 99% of the students, under their student leadership or voluntarily welled up within the class have decided to get together and say the Lord's Prayer every morning before they begin, got to school two minutes early or three minutes early and said the Lord's Prayer there in the classroom every morning because they wanted to?
Leonard J. Kerpelman: As hypothesized by Your Honor, I think it would be perfectly constitutional. Exactly as this Court having certain autonomous powers, certain rights to decide what its procedure will be, what it will do when this authority does not extend to compelling someone who attends --
Potter Stewart: Well --
Leonard J. Kerpelman: This Court has the authority to say a prayer in the morning, to have the fryer say “God save --
Potter Stewart: I couldn't agree with you more if there were any compulsion -- is there any compulsion because that would inters -- interfere with the free exercise of the religion of your client or the non-religion, which is the same thing. But this pro -- this statute contains a specific explicit provision that you can walk away from this.
Leonard J. Kerpelman: Well, Your Honor, I think that Your Honor's hypothesis where the ceremony comes from the class would be constitutional. If the ceremony is imposed by the school authorities which thereby give it their sanction, their approval, their -- the only advantage is flowing from approval by the authority, then it would be unconstitutional. I think that that would be the distinction.
Potter Stewart: Then shouldn't this -- might it not be wise to remand this case to take evidence as to see whether or not there was any compulsion on your client? All we have is bear allegations now of your pleading admitted by the demurrer --
Leonard J. Kerpelman: Well --
Potter Stewart: -- and to take evidence as to who wanted to say these prayers in the morning and with whose -- with the free exercise of whose religion striking down this ordinance would interfere.
Leonard J. Kerpelman: Well, it's been admitted by demurrer that the allegations are true.
Potter Stewart: I understand that.
Leonard J. Kerpelman: And if the case were remanded, we'd come back up here with the same set of facts, if Your Honor please, because the facts are as alleged. The facts are very much as alleged.
Potter Stewart: Well, there's no evidence at all that anybody wants to say this prayer now (Inaudible).
Leonard J. Kerpelman: Well, I would ask the Court to decide the case on the basis that we've assumed that those people would say --
Potter Stewart: You're going to get around a demurrer. On your --
Leonard J. Kerpelman: Yes, sir.
Potter Stewart: -- on your pleading on a demurrer and they (Inaudible)
Leonard J. Kerpelman: Yes, Your Honor, but I think it's quite clear, perhaps even clear enough for the Court to take judicial notice, that most people would like to have this prayer.
Potter Stewart: In the exercise of their religious beliefs.
Leonard J. Kerpelman: Well, they would like to have this prayer.
Hugo L. Black: They would like the --
Leonard J. Kerpelman: This is one of the most --
Hugo L. Black: They would like to have the state use its tools paid for by taxpayer's money to carry out their religion.
Leonard J. Kerpelman: Their religion, yes, Your Honor, as long as they are the majority. If they were the minority, they would not feel that way, I think.
Potter Stewart: Well, what if the minority wanted to had, say a prayer in school?
Leonard J. Kerpelman: They have no right to do so. They have no right to have a school --
Potter Stewart: They have a constitutional right to do so, don't they, so long as they're not interfering with anybody else?
Leonard J. Kerpelman: Oh, they have a right to say a prayer as long as they're not interfering with the orderly conduct in the school's business. They have no right to have the school authorities to make everyone say this prayer.
Potter Stewart: But each one of us, whether they're-- whether we're 1 or whether we're 10 million, have a right to the free exercise of our religion. Isn't that correct under the Constitution.
Leonard J. Kerpelman: Providing it does not impinge on other person's --
Potter Stewart: It doesn't help to talk about minorities or majorities in this case.
Leonard J. Kerpelman: Providing it does not impinge on other person's constitutional freedoms, Your Honor.
Hugo L. Black: Well, if that's right, as applied to this case, why only have 5 or 10 minutes? If the majority all want to have it for religious purposes, why not use the whole day?If they vote -- the majority vote to do it, they could use it the whole day, couldn't they?
Leonard J. Kerpelman: Well, of course, the majority is there --
Hugo L. Black: If it exer -- if it would interfere with the free exercise of their religion.
Leonard J. Kerpelman: Yes, of course, Your Honor. The pupils are there to learn. They're there to study secular subjects. If they're going to devote the whole day to religious ceremony, they apparently, obviously, had no right to do that just by a majority vote. I think, likewise that --
Earl Warren: We'll recess now.
Leonard J. Kerpelman: Yes, Mr. Justice.