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the Supreme Court, Plessy v. Ferguson, 163 U.S. 537, 16 S. Ct. 1138, 41 L. Ed. 256; Gong Lum v. Rice, 275 U.S. 78, 48 S. Ct. 91, 72 L. Ed. 172, that nothing in the Fourteenth Amendment to the Constitution of the United States forbids segregation of the races in the public schools provide equal facilities are accorded the children of all races. Our decision has been reversed by the Supreme Court, Brown v. Board of Education of Topeka, 349 U.S. 294, 75 S. Ct. 752, 757, which has remanded the case to us with direction "to take such proceedings and enter such orders and decrees consistent with this opinion as are necessary and proper to admit to public schools on a racially non-discriminatory basis with all deliberate speed the parties to these cases".

Whatever may have been the views of this court as to the law when the case was originally before us, it is our duty now to accept the law as declared by the Supreme Court.

[1-4] Having said this, it is important that we point out exactly what the Supreme Court has decided and what it has not decided in this case. It has not decided that the federal courts are to take over or regulate the public schools of the states. It has not decided that the states must mix persons of different races in the schools or must require them to attend schools or must deprive them of the right of choosing the schools they attend. What it has decided, and all that it has decided, is that a state may not deny to any person on account of race the right to attend any school that it maintains. This, under the decision of the Supreme Court, the state may not do directly or indirectly; but if the schools which it maintains are open to children of all races, no violation of the Constitution is involved even though the children of different races voluntarily attend different schools, as they attend different churches. Nothing in the Constitution or in the decision of the Supreme Court takes away from the people freedom to choose the schools they attend. The Constitution, in other words, does not require integration. It merely forbids discrimination. It does not forbid such segregation as occurs as the result of voluntary action. It merely forbids the use of governmental power to enforce segregation. The Fourteenth Amendment is a limitation upon the exercise of power by the state or state agencies, not a limitation upon the freedom of individuals.

The Supreme Court has pointed out that the solution of the problem in accord with its decisions is the primary responsibility of school authorities and that the function of the courts is to determine whether action of the school authorities constitutes "good faith implementation of the governing constitutional principles." With respect to the action to be taken under its decision the Supreme Court said:

"Full implementation of these constitutional principles may require solution of varied local school problems. School authorities have the primary responsibility for elucidating, assessing, and solving these problems; courts will have to consider whether the action of school authorities constitutes good faith implementation of the governing constitutional principles. Because of their proximity to local conditions and the possible need for further hearings, the courts which originally heard these cases can best perform this judicial appraisal. Accordingly, we believe it appropriate to remand the cases to those courts.

"In fashioning and effectuating the decrees, the courts will be guided by equitable principles. Traditionally, equity has been characterized by a practical flexibility in shaping its remedies and by a facility for adjusting and reconciling public and private needs. These cases call for the exercise of these traditional attributes of equity power. At stake is the personal interest of the plaintiffs in admission to public schools as soon as practicable on a nondiscriminatory basis. To effectuate this interest may call for elimination of a variety of obstacles in making the transition to school systems operated in accordance with the constitutional principles set forth in our May 17, 1954, decision. Courts of equity may properly take into account the public interest in the elimination of such obstacles in a systematic and effective manner. But it should go without saying that the vitality of these constitutional principles cannot be allowed to yield simply because of disagreement with them.

"While giving weight to these public and private considerations, the courts will require that the defendants make a prompt and reasonable start toward full compliance with our May 17, 1954, ruling. Once such a start has been made, the courts may find that additional time is necessary to carry out the ruling in an effective manner. The burden rests upon the defendants to establish that such time is necessary in the public interest and is consistent with good faith compliance at the earliest practicable date. To that end, the courts may con

sider problems related to administration, arising from the physical condition of the school plant, the school transportation system, personnel, revision of school districts and attendance areas into compact units to achieve a system of determining admission to the public schools on a nonracial basis, and revision of local laws and regulations which may be necessary in solving the foregoing problems. They will also consider the adequacy of any plans the defendants may propose to meet these problems and to effectuate a transition to a racially nondiscriminatory school system. During this period of transition, the courts will retain jurisdiction of these cases.

"The judgments below, except that in the Delaware case, are accordingly reversed and remanded to the District Courts to take such proceedings and enter such orders and decrees consistent with this opinion as are necessary and proper to admit to public schools on a racially nondiscriminatory basis with all deliberate speed the parties to these cases."

The Court is convened to hear any concrete suggestions you may have to make as to the decree that it should enter.

Decree

This cause coming on to be heard on the motion of plaintiffs for a judgment and decree in accordance with the mandate of the Supreme Court, and the Court having carefully considered the decision of the Supreme Court, the arguments of counsel, and the record heretofore made in this cause:

It is ordered that the decree heretofore entered by this Court be set aside and, in accordance with the decision and mandate of the Supreme Court, it is ordered, adjudged and decreed that the provisions of the Constitution and laws of the State of South Carolina requiring segregation of the races in the public schools are null and void because violative of the Fourteenth Amendment to the Constitution of the United States, and that the defendants be and they are hereby restrained and enjoined from refusing on account of race to admit to any school under their supervision any child qualified to enter such school, from and after such time as they may have made the necessary arrangements for admission of children to such school on a non-discriminatory basis with all deliberate speed as required by the decision of the Supreme Court in this cause.

It is further ordered that this cause be retained on the docket for the entry of further orders herein if necessity for same should arise.

Senator ERVIN. Mr. Attorney General, since I have put the Brown case in the record, I trust I will be able to proceed with more than deliberate speed.

Attorney General KENNEDY. All right, sir.

Senator ERVIN. I want to ask you a few more questions about the title dealing with school desegregation.

Is not the Federal Commissioner of Education a presidential appointed official rather than a civil service employee of the Government? Attorney General KENNEDY. That is correct, Senator.

Senator ERVIN. So can't we reasonably assume that the Federal Commissioner of Education will administer the provisions of title III applicable to him in accordance with the policies of the administration?

Attorney General KENNEDY. I think that is correct, and in accordance with his oath of office.

Senator ERVIN. Now, I want to call your attention again to section 304 of the bill, on lines 7, 8, 13, 14, 15, 16, 17, of page 21, which read as follows:

The Commissioner may make a grant under this section, upon application therefor, for the cost of employing specialists in problems incident to desegregation or racial imbalance and of providing other assistance to develop understanding of these problems by parents, schoolchildren, and the general public. I am interested in your interpretation of what kind of understanding is to be developed. I do not know whether you agree with me on this point or not, but I am firmly convinced from everything I have

heard and read that there are literally millions of people in the United States who do not believe that there should be compulsory integration of the public schools. I think that is illustrated very strikingly here in the District of Columbia.

In 1950, the total white population in the District of Columbia was 517,865 persons. In 1960, it had decreased to 345,263, being a decrease in the white population of the District of 172,602.

In 1950, before the school desegregation decision was handed down and before the policy of attempting to make the city of Washington the showplace of the Nation in school desegregation was adopted, the total number of white children in the public schools of the District of Columbia was 46,736. By the year 1962, the total number of white children in the public schools of the District of Columbia had decreased to 22,280, making a total decrease in the number of white schoolchildren attending the schools of the District of Columbia during this 12-year period of 24,456.

I infer that this exodus of white people from the District of Columbia has been occasioned in substantial part by compulsory school integration within the District.

Attorney General KENNEDY. May I say something about that, Senator? Senator ERVIN. Yes.

Attorney General KENNEDY. It is very possible it was a factor, but I don't think it is a major factor. If you look at any major metropolitan area in the United States, you will see that there is more and more of an effort to get out of the city and get into the suburbs. That is true here in the District of Columbia. It happens to be that white people here in the District of Columbia, as really in every major metropolitan area, have a higher income, a greater source of income than nonwhite people, so that they can afford a house out in the suburbs. They can afford to move out.

Now, certainly, that is true in my own city of Boston, where I suppose the population is far less now than it was 10, 15, or 20 years ago, because people have moved out into the suburbs.

I think it is true of every major metropolitan area, Senator.

On the other hand, Negroes have come up into Washington. There has been an influx because they feel they perhaps will have more opportunity up here than they have in other areas of the country.

Senator ERVIN. Do you not know that the census figures reveal that the white people who have been moving out in the District have largely been white people of child-bearing age?

Attorney General KENNEDY. I Congratulate them, Senator. I think they have had a fine opportunity. I am of child-bearing age and I have moved out, too.

But I think it is nicer in the country, Senator.

Senator ERVIN. Oh, I do, too. Much nicer. In fact, I do not know of any place that is not nicer than the District of Columbia, because I think there is more nonsense up here per square inch than any other place in the United States.

But do you contest the fact that very substantial segments among the American population do not favor compulsory integration of

schools?

Attorney General KENNEDY. I think there are those who are not in favor of their children going to school with nonwhites. I think that

there are children whose parents do not want their children to go to school with children of a different religion than their own children. I think there are parents who do not want their children to go to school with children of a different race, who want them to go with children with the same cultural background.

I think this is true of all the United States. I think it is very natural.

Senator ERVIN. I am glad you say that you think it is very natural, because that is the opinion I entertain.

Attorney General KENNEDY. Senator, may I explain that?
Senator ERVIN. Yes.

Attorney General KENNEDY. When I say I think it is very natural, I mean that we have every point of view in the United States. A portion of our population think it is natural to swallow goldfish.

Senator ERVIN. That is such a negligible portion. There is no provision in the civil rights bill for protection of people who want to swallow goldfish.

Will you join me in assuming that there are a substantial number of people in the United States who believe that children can be best educated in segregated schools attended exclusively by members of their own race, free from the racial tensions which exist throughout the country-or, rather, in many areas of the country?

Attorney General KENNEDY. I don't know about a "substantial proportion." I think there is a high proportion in the Southern States that feel that way. I doubt if it is a high proportion in the rest of the country.

Senator ERVIN. The rest of the country is not quite as affected. But I will call your attention to the rest of the country in a minute or two.

The reason I asked that question is this: Would the Federal Commissioner of Education have the authority under this provision about employing specialists to develop an understanding among the general public to expend any funds for the purpose of giving currency to that belief?

Attorney General KENNEDY. No; I don't believe so, Senator. The provision is that the Commissioner may make a grant under this section upon application of State or local authorities. I think that is extremely important. The Commissioner has to have an application for the funds. Then the money is spent by the local school board. The Commissioner does not employ anyone. The local school board employs people and the Commissioner of Education, the Federal Government, helps pay the cost.

So I think the control still rests completely and absolutely in the hands of the local people. This I think is important.

Senator ERVIN. I have a little difficulty accepting that interpretation, because in lines 20, 21, and 22 on the same page it says this:

Each grant under this section shall be made in such amounts and on such terms and conditions as the Commissioner shall prescribe.

Attorney General KENNEDY. If they are not acceptable, then the local school board does not have to accept them and therefore will not obtain the funds. I think that is very wise, Senator. You wouldn't want the money expended by the Federal Government without some kind of control.

Senator ERVIN. I do not think it wise for the Federal Government to spend tax moneys for the purpose of imposing an acceptance of its policies upon the general public as this bill authorizes the Federal Commissioner of Education to do. The bill states very plainly that the grants for the hiring of specialists as well as all other grants are going to be made upon such terms and conditions as the Commissioner may prescribe rather than on terms and conditions which the school boards make.

Attorney General KENNEDY. No. 1, Senator, there has to be a request for the funds. The Commissioner does not spend any money unless there is a request for funds.

No. 2, individuals who are going to be hired to perform any functions or tasks are going to be the employees of the local school board. So there is that local control.

Senator ERVIN. The school board can apply for the funds, but it can never get them unless it is willing to accept them on such terms and conditions as the Federal Commissioner of Education may prescribe.

Attorney General KENNEDY. Since the funds are coming from the Federal Government, some control by the Commissioner of Education I think is very wise.

Senator ERVIN. I do not think that action on the part of the school boards will be quite as free as you imply.

Attorney General KENNEDY. Senator, they do not have to request it and they do not have to accept it. So there is no real problem for anybody.

Senator ERVIN. No; but they are not going to get the funds from the Federal Government under these provisions of the bill unless they accept them with the strings tied on them that they shall deal with them under such terms and conditions as the Commissioner prescribes.

The provisions of title III of the bill relating to the powers of the Federal Commissioner of Education make reference to racially imbalanced schools or the problems of racially imbalanced schoolseight separate times.

Is it the policy of the administration to encourage transporting children away from their neighborhood schools to schools in other communities for the purpose of getting what some educators may conceive to be racially balanced schools in the other communities?

Attorney General KENNEDY. No; we have no policy on that, Senator. Senator ERVIN. If the administration does not have any policies on this matter, why does it ask that Congress authorize the appropriation of money to be used as grants by the Commissioner of Education to solve problems of so-called racially imbalanced schools?

Attorney General KENNEDY. In order to assist school districts that are having problems with racially imbalanced schools, Senator. There are such problems, as we discussed last time.

None of this legislation has been suggested in a vacuum, Senator. There are problems in the United States at the present time which need attention, require assistance. The legislation that we are suggesting will provide some of that help.

Already problems have arisen in a number of our major metropolitan areas with racially imbalanced schools which the local school authorities, the local officials, the people in the local area, are trying to deal with. We are hopeful that through this legislation, we can

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