The Supreme Court In Conference April 16, 1955

NOTES OF JUSTICES CONCERNING THEIR CONFERENCE DISCUSSIONS IN THE CASE OF BROWN et al. v BOARD OF EDUCATION OF TOPEKA

Conference of April 16, 1955

CHIEF JUSTICE WARREN: I have not formed a fixed or definite opinion at this time, and we might want to talk this over as we did in the main cases, I think that there are some things that we should not do, We should not:

a. follow the government's suggestion and appoint a master.

b. indicate to the district courts that they should appoint a master. But of course each district court has that power and could appoint a master.

c. fix a date for completion of the program of desegregation, or suggest to the lower courts that they fix such a date. That should be left to the district courts to do what they think best.

d. require the district courts to call for a plan for the school districts. The district courts might well do so-but we should not require it.

e. make any procedural requirement for the lower courts-this is an equity proceeding.

What appeals to me: Should we give guidance to the lower courts in an opinion or in a formal decree? I think, that we are better off writing an opinion which would set forth the factors and conditions which the lower courts should take into consideration, rather than issuing a formal decree. It is better done this way, and it would circumscribe the district courts as such. The lower courts would get more comfort that way than with a formal decree. I would not make the decree a mere bare-bones decree. We should say something that will help the district courts. We ought to give them guidance--it would make it much easier. It would be rather cruel to shift these hack and let them flounder.

I would put into our opinion the principles and limits, and then decree a base line. Our decree will be to act in accordance with that opinion and brief. Here are some ground rules for what the opinion should say:

a. these are class actions, which involve not only the named plaintiffs but all of the students in the education districts that they sued.

b. these rights are personal rights for the named defendants and the class they represent.

c. every judge is entitled to take into consideration administrative problems, fiscal problems, or physical facts essential for completion of our decree. I would not say or intimate that the lower courts could take into consideration psychological or sociological attitudes. If that were allowed, it would defeat the decreed. the lower courts should consider whether the bills submitted represent progress, and whether there has been a real initiation of a program.

We should give the district courts as much latitude as we can, and also as much support as we can.

BLACK: I have no fixed views. I am not sure that I have any definitive views worth submitting. I think that it is important to have unanimous action. If humanly possible, I will do anything to achieve a unanimous result. My tentative ideas vary from the Chief Justice’s.

At present, I would write a decree and quit. The less we say, the better off we are. Certain things may be, and probably are, true. In the South, I was brought up in an atmosphere against federal officials. They are just now beginning to feel some respect for federal officials. The root of the problem was the race question. Some counties won't have Negroes and whites in the same school this generation. My law clerk does not think that Negroes and whites could go to school together in Lowndes County in his lifetime.

I agree that attitudes should not be mentioned in the decree, but we cannot ignore them. Clarendon County in South Carolina is typical of much of the South. It has some resemblance to Alabama counties. They would never be a party to allowing whites and Negroes to go to school together. We have no more chance to enforce this in the Deep South than to enforce Prohibition in New York City.

I would start with the thought that nothing could injure this Court more than to issue orders that cannot be enforced. It is futile to think that in these cases we can settle the question of segregation in the South. We need a careful statement that segregation is unconstitutional. I would remand the Kansas, Delaware, and District of Columbia cases for further proceedings in accordance with our prior decision of May 17.

The South Carolina and Virginia cases are decrees for setting a pattern. These cases arc not going to settle the issue or control the destiny of the South. There is a great deal of stubbornness. People there are going to fight this. There will be a deliberate effort to circumvent the decree. We can't undertake to settle the problem. It becomes desirable to write as narrowly as possible. I do not believe that an enumeration of principles would be helpful. We can't dispose of it merely by establishing principles for action. Not one federal judge in the South is in favor of this. I think I know them all.

My idea may be unworkable. I am not fond of class law suits. I am not sure how many Negro students would want their names included in this litigation. Many don't want to be included. Therefore, I would treat these as individual cases. If the named plaintiffs are all we deal with, the administrative difficulty would not be great.

Second go: There is alternative prayer for an injunction against school boards refusing admissions. If we granted that, it would protect all students, but I am not sure that the students would want to go.

My present, tentative suggestions for a decree: First, write an opinion in decree form saying that it is unconstitutional, and that these students must be admitted. Then send it back and issue a decree that these seven children should not be excluded by reason of their color. Enjoin the school board not to refuse-avoid contempt. The same in Virginia. There forty-three students named in South Carolina, and one hundred fifty in Virginia. We should move gradually-like a glacier, states on the outside. I am by no means sure, if they are to abolish public schools, whether it is better to do it now. Georgia is sure to do so.

One of the most eloquent men I have heard at the bar was the man from South Carolina.

REED: I don't know the Deep South. I have a firm belief that there is a considerable group wanting to give this decision sympathetic consideration. When some schools are opened, it will have a further effect. These are class suits, and those who might come in and be parties would be beneficiaries of any court order. I think that all students who are not plaintiffs who want to intervene can do so up to the time official judgment. It might be better, however, not to mention that these are class suit. We can think of them as class suits, but not state it in the decree. We should either say nothing about this class, or we should specifically authorize the lower courts to admit the class. It is essential to say, or at least to look at what must be done. I am agreeable either way to say that these are class suits or not. I would remand these cases, directing that these schools are to be opened to the named plaintiffs with all convenient speed. We should put it in the form of an opinion and a short decree. I favor a short opinion, asserting the constituttona1 principles and some guidelines and then sending these cases back with limited ground rules in there. I favor an opinion as well as a decree as it would be more flexible. I question whether we should call for the submission of a plan. We should not require it. I question whether we should mention it at all. I would suggest that the lower courts could call for a plan if they want one and it might be well to authorize the lower courts who want a plan to ask for one. They might classify on grounds of sex, or they might integrate class by class.

I would not set a time limit or fix definite terms, but would follow the language of the Jaybird decree. The direction in the Jaybird case, Terry v. Adams, is enough. That will result in doing more with the public schools in these areas. Our order may result in public schools being abolished. We can't require public school systems. The border states will be examples.

FRANKFURTER: I welcome greatly that we can talk in a candid, relaxed way of general direction. The Kansas, Delaware, and District of Columbia cases are easy. But we must conceive of the environment of the decree in South Carolina, Virginia, and so forth. The attitude of the South is a fact to be taken into consideration as much as administrative difficulty and so forth.

The right here vindicated was a right created only last year. The important thing is not the decree, but an opinion. By all means there should be an opinion. This is a slow process and something should be said about it. What we do is largely educational.

This is a law suit. Concrete procedures, but a different kind of a law suit. This is an unreal problem as to class suits, because no matter how you restrict the decree to names, the same demand will be made for others. The multitude will spring up and others will be joined. But the whole school system is geared on this basis. In the South Carolina and Virginia cases, the matter is before three judges. It is fortuitous that these cases are in courts of three. and we should require three judges to sit on the remand. They can share the burden, and there is more wisdom with three than with one judge. We should be specific that it be three-judge court, and §2106 gives us the power to require that. I don't know whether the local court--to order a decree-whether it is important that there be three judges.

What we say and the kind of feeling we impart is important. The United States Supreme Court is for all of the country, including the South. I do not agree with Thurgood Marshall that southern attitudes are to be left out of consideration. I do not agree with the Texas polls." By gradual infiltration of border states, the process of desegregation can spread to the Deep South.

DOUGLAS: We should have an opinion. Don't add much opinion. We should say that we have benefited from their argument, statistics. Include the items that the Chief Justice mentioned. We should give a push. We should suggest as fast as circumstances permit. I would not suggest a date, but use language like Jaybird, and words to show that we must get along with this matter. Like Hugo, I have doubts about treating these cases as class action suits. I am inclined to make a decree restricting relief to the named individuals. I am inclined to a cut-off for named plaintiffs.

BURTON: I favor an objective declaration of unconstitutionality, and I would enjoin such segregation as rapidly as possible. I would not restrict relief. In its nature, we are dealing with a class. The problem is the race line, not just putting in a few colored children. Neither this Court nor the district courts should act as a school board or formulate the programs.

There should be no masters. We must order nothing that will be futile. It is vital that it be unanimous-this is the demonstrating factor. I believe in a short opinion followed by a decree. The decree would declare segregation and all laws supporting it to be unconstitutional.

I would remand for the purpose of malting it effective:

(a) good faith efforts in eliminating segregation;

(b) parties defending shall present plans; and

(c) pending completion, there should be reports and the courts should retain jurisdiction.

CLARK: I am closer to Felix than to anyone else. Texas is not going to present any acute problems; there will not be too much trouble there. But there are some Clarendons there. The disparity between white and colored school, is great. The administrative problem is great. Lots of new school buildings would have to be erected. We can't simply relocate between colored schools and white schools, putting five hundred students in shacks and five hundred students in good schools. Whites will go to school with colored children, but they never will allow white students under colored teachers. Many will still go to wholly colored schools. We can't restrict these suits to named plaintiffs.

They are going to try to do what this Court says. We could not have a "forthwith" order as Hugo suggests.

We need to be careful what we say. Three judge courts are good. A Jaybird decree is desirable.

MINTON: I agree with Hugo and Harold, and will go along with the majority. Unanimous action by the Court is of primary importance. I doubt the advisability of writing much, and I have doubts about writing many opinions. We should not make big talk in the opinion and little words in the decree. The main thing is to get to work in the area. Democracy should never reveal its own impotence. We should be careful not to issue a futile decree that we cannot enforce. But we must do something in the area. The decree should look like this:

a. a declaration of unconstitutionality;

b. we should enjoin school authorities from admitting or excluding on the basis of

a person's color;

c. we should direct them to file with the district court on or by 9/1/55 a plan of admissions with equal treatment and

d. rites are to be given in the district courts.

HARLAN: All of my ideas have been expressed by others. I would emphasize that whatever our conclusion, it is of the essence that our opinion be unanimous. This is political statesmanship. I am deeply impressed by what Hugo Black said about the Deep South, and the importance of taking those factors into account. I am surprised at the degree of unanimity on the basic issues.

We might be mistaken in thinking that writing might not help-it might have just the opposite effect. A properly written opinion reflecting our basic approach might be helpful. Issuing only a decree might be too cold and heavy-handed. I am disposed to have an opinion and a decree, with the decree in the simplest possible form. Outside of May 17, there should be no time limits. The injunction should carry out by the 17th.

I agree with the Chief Justice as to the scope of our opinion. We should:

a. reiterate our holding of May 17.

b. make some reference to the steps that have been taken for advice as to implementation.

c. make some reference to the broad positions taken by the plaintiffs and the states.

d. make it clear that we have proceeded under equity powers, and that we have the power and duty to mold exigencies and to liquidate history.

e. recognize that the school problem is local and that is not changed by the views expressed here, and that we are remanding these cases to the local courts.

As to whether or not these are class suits, I originally felt that these were not true class suits--and they probably are not. But as a practical matter, the class suit may be a helpful device. II is a guide--a coming in of people. It would be worthwhile to make dear what we are holding. We should include only those who joined before a certain date. We should embrace the idea of a class suit, and so phrase it as to limit it as a precedent.