against his will to school elsewhere for the purpose of mixing the races in such school.

Attorney General KENNEDY. Could you tell all that we have agreed

on?

Senator ERVIN. It would not take long; would it? It would take a short time, but it would take more time for us to find something to agree on than it would for me to tell you about it.

Attorney General KENNEDY. Yes, but we agreed on the southern schools, too.

Senator ERVIN. No; we agreed on what would be the rule under the Brown decision.

Attorney General KENNEDY. On the same basis that we talked about.

Senator ERVIN. But incidentally

Attorney General KENNEDY. But, Senator, we also agreed that to transport a Negro child out of his neighborhood, past his neighborhood school, and send him to another school which was segregated, would violate his rights under the 14th amendment.

Senator ERVIN. We will agree on the proposition

Attorney General KENNEDY. Senator, did we agree on that or not? Senator ERVIN. Here is what I am agreeing with you on: On May 17, 1954, the Supreme Court of the United States repudiated 70 previous decisions of State and Federal courts, including a unanimous opinion of its own handed down in 1927, and otulawed the separate but equal doctrine which had been recognized as a proper interpretation of the 14th amendment ever since its ratification. Under that adjudication of the Supreme Court when a child of any race is denied the right to attend any school maintained by the public authorities because of his race, he is being denied the equal protection of the laws under the 14th amendment.

Attorney General KENNEDY. Thank you, Senator.

Senator ERVIN. I still maintain and have always maintained that the Supreme Court fails to exercise the highest judicial virtue, namely, judicial self-restraint, when it changes the meaning of the Constitution while it is pretending to interpret the Constitution. The power to amend belongs to the Congress of the United States and the States. The power to amend is the power to change the meaning of the Constitution. The power to interpret belongs to the Court, and that is only the power to ascertain and give effect to the intent of those who drafted and those who ratified the Constitution.

I wish to call attention to a decision of the Federal district court, sitting in Indiana, Bell v. the School City of Gary, Indiana, which was written by Judge George Beamer, which was handed down on January 29, 1963, and which was reported in 213 Fed. Supp., p. 819. This decision declares:

Furthermore, requiring certain students to leave their neighborhood and friends and be transferred to another school miles away, while other students, similarly situated, remained in the neighorhood school, simply for the purpose of balancing the races in the various schools would in my opinion be indeed a violation of the equal protection clause of the 14th amendment.

Mr. Chairman, I would like to have this decision printed in full in the record at this point.

Senator JOHNSTON (presiding). I hear no opposition. It will be done.

Senator ERVIN. I will proffer this copy of the decision to the reporter on the assurance that it will be returned to me.

(The document referred to follows:)

RACHEL LYNN BELL, A MINOR, BY MRS. ODESSA K. BELL, HER MOTHER AND NEXT FRIEND, ET AL. v. SCHOOL CITY OF GARY, INDIANA

Civ. No. 3346.

United States District Court N. D. Indiana,

Hammond Division. Jan. 29, 1963.

Declaratory judgment action brought by minor Negro children enrolled in public schools charging that city maintained a segregated school system in violation of plaintiffs' constitutional rights. The District Court, Beamer, J., held that the plaintiffs had failed to establish that the Board of Education had deliberately or purposely segregated city neighborhood schools according to race by drawing of boundary lines so as to contain Negroes in certain districts and whites in others.

Plaintiffs, bringing declaratory judgment action charging that city schools were maintained as racially segregated school system in violation of plaintiffs' constitutional rights, failed to sustain burden of showing that city school board had drawn boundary lines of neighborhood school districts within system so as to contain Negroes in certain districts and whites in others.

2. Declaratory Judgment 345

Evidence in declaratory judgment that city school system maintained segregated schools established that there were compelling reasons for redrawing boundary lines of school districts as result of construction of new school, aside from any racial consideration.

Plaintiffs failed to prove in declaratiory judgment action that students attending predominantly Negro schools in city school system had been discriminated against because of inferior instruction, inferior curriculum or overcrowded conditions.

Mere fact certain schools in city school system are completely or predominantly Negro does not mean that school board is maintaining a segregated school system.

5. Schools and School Districts 13

School system developed on neighborhood school plan, honestly and conscientiously constructed with no intention or purpose to segregate races, need not be destroyed or abandoned because resulting effect is to have racial imbalance in certain schools where districts are populated almost entirely by Negroes or whites, and racial balance in public schools is not constitutionally mandated.

F. Laurence Anderson, Jr., Hilbert L. Bradley, Gary, Ind., Richard G. Hatcher, East Chicago, Ind., Charles Wills, South Bend, Ind., Robert L. Carter, Barbara A. Morris, New York City, for plaintiffs.

Orval W. Anderson, Albert H. Gavit, Gary, Ind., Edmond J. Leeney, Hammond, Ind., for defendant.

BEAMER, District Judge.

This is a declaratory judgment action brought by approximately 100 minor Negro children, enrolled in the public schools in Gary, Indiana. The action is brought by and on behalf of the plaintiffs and all others who are similarly situated, against the School City of Gary, Gary, Indiana.

The plaintiffs present three principal questions which they ask the Court to determine:

1. Whether the defendant, by assigning plaintiffs and the other members of the class to certain schools, by creating attendance zones, by controlling transfers from school to school, by controlling assignments from elementary to secondary schools and by the pattern of building new schools and enlarging others, maintain the Gary schools as a racially segregated school system in violation of the plaintiffs constitutional rights.

2. Whether the defendant is discriminating against the plaintiffs and the class they represent by providing inferior facilities in all respects, including but not limited to overcrowded and larger classes and unequal recreational and extra curricular facilities in violation of their constitutional rights, and

3. Whether the plaintiffs and other members of the class have a constitutional right to attend racially integrated schools and the defendant has a constitutional duty to provide and maintain a racially integrated school system. The evidence shows that Gary, Indiana is a rapidly growing industrial city located in the northwest portion of Indiana. Geographically it is shaped much like the capital letter "T". Its north boundary line is the southern shore of Lake Michigan. The stem of the "T" extends approximately seven miles from near the shore of Lake Michigan to the southern boundary of the city and is approximately two miles wide. The crossbar of the "T" is approximately four miles wide and extends east and west a distance of approximately ten and onehalf miles. Steel mills and other heavy industrial establishments are located primarily along the shore of the lake. The remainder of the territory is devoted to commercial and residential areas although some industry is located near the east and west portions of the crossbar of the “T”.

The population of Gary, according to the United States Census, in 1950 was 133,911 which included 39,326 Negroes. In 1960, the population was 178,320, of which 69,340 were Negroes. The student population in the public schools for the 1951-52 school year was 22,770, of which 8,406 or approximately 37 percent were Negroes. In the 1961-62 school year there were 43,090 students in the public school system and 23,055 or approximately 53 percent were Negroes.

In 1951, the Gary School City maintained 20 school buildings. In 1961, the number of buildings had increased to 40. Additional schools had either been completed or were in the process of completion at the time of the trial of this

case.

In the school year 1961-62, 10,710 of the students enrolled in the Gary school system attended fourteen schools which were 100 percent white; 16,242 students attended twelve schols which were populated from 99 to 100 percent by Negroes; 6,981 students attended five schools which were from 77 to 95 percent Negroes; 4,066 attended four school which had a range from 13 to 37 percent Negro; 5,465 attended five schools which had a Negro population from one to five percent. The schools in operation in the 1951-52 and 1961-62 school years, their total enrollment and percentage of Negro students are shown on the following chart.

Table showing comparison of Negro and white youth enrolled1 in Gary public schools, year 1951 and year 1961

The Negro population in Gary is concentrated in what is generally called the "Central District" which occupies roughly the south half of the cross-bar of the "T" from east to west and is bounded on the north by the Wabash Railroad and on the south by the city limits and the Little Calumet River. The expansion of the Negro population within the Gary city limits has been largely from east to west within the Central District. Approximately 70,000 Negroes including the 23,000 Negro schoolchildren live in this district which comprises about one-third of the area of the city.

Gary, which is a relatively new city having been organized in 1906, developed a rather unique school system commonly known as the Wirt System, so named after the superintendent of schools who was its architect. It was originally laid out in eight school districts and, as the school population demanded, one large school was built in each of the eight districts. Each of these schools handled the education of the public school population within its area, from kindergarten through high school. The original eight schools comprising this system were Edison, Tolleston, Mann, Froebel, Roosevelt, Wallace, Emerson, and Wirt. Only Emerson remains a kindgarten through twelve school.

As the school population expanded, additional elementary schools were built. These were generally schools serving children from kindergarten through the

sixth grade. Some of these elementary schools serve students from only one of the original eight districts and others accommodate elementary students from two or three such districts.

As these elementary schools were built, attendance zones were drawn for them and as the students complete the course in the elementary school to which they are assigned, they then go on to the high school in the district in which they reside for the completion of their public school education.

When some of the original kindergarten through twelve schools could no longer handle the school population above the sixth grade, junior high schools were built to relieve the pressure. The Pulaski Junior High School was the original junior high building and it houses seventh, eighth and ninth grade students from portions of the Roosevelt, Froebel and Emerson districts. The Beckman Junior High School building, just now being completed, will handle sixth, seventh and eighth grade students from a portion of the Roosevelt district and Bailly, also in the process of construction, will handle seventh and eighth grade students from the Wallace district.

Prior to 1949, Gary had segregated schools in what is commonly known as the Pulaski Complex. Two schools were built on the same campus, one was called Pulaski-East and the other Pulaski-West. One was occupied by Negro students and the other by white students. This was in accordance with the separate but equal policy, then permitted by Indiana law (Burns Indiana Statutes Annotated, 1948 Replacement, Section 28-5104). In 1949, Indiana repealed the separate but equal law and passed a new act expressly prohibiting segregated schools on the basis of race, color or creed (Burns Indiana Statutes Annotated, 1948 Replacement, Pocket Supplement, § 28-5158). Complying with the mandate of the Indiana Legislature, the Gary School Board abolished the segregated schools in the Pulaski Complex and integrated the two schools. Prior to this time, however, the races were mixed in some of the other schools in the Gary system.

It is in the contention of the plaintiffs that the defendant, by the manner in which it has drawn its school district boundaries, has purposely and intentionally maintained a segregated school system thereby depriving a majority of the Negro students in Gary from attending schools with white students. The Board, on the other hand, specifically denies that there has been any intentional segregation of the races in the Gary school system. As a matter of fact, the School Board and its staff insists that they are color blind, so far as the races are concerned, in the administration of the Gary school system. They maintain no records on the basis of race or color and had to secure the information as to the number of Negroes attending the various schools from sources other than rceords kept by the school administration for the purpose of obtaining racial figures for the trial of this case.

There can be no doubt that those in charge of administration of the Gary schools have had a serious problem, during the past decade or so, in maintaining facilities for the rapidly expanding school population. During the past ten years twenty-two new schools or additions have been built and the class rooms have been more than doubled. In Indiana a school corporation is limited in its bonding power to two percent of the assessed valuation of the property in the district. The Gary School City has been bonded to its limits for the purpose of providing facilities for the past several years. In addition, they have provided, through taxation, an accumulated building fund for the purpose of aiding in the construction of facilities for their ever expanding student population. For the year 1962, payable in 1963, the property tax rate for the School City of Gary is $5.85 per $100.00 of assessed valuation, which is either the highest or one of the highest in the state of Indiana.

In spite of the tremendous effort made by the Board of Trustees and the school administration, they have not always been able to keep their students adequately and properly housed. In addition to adding school buildings they have rented churches, store rooms, and utilized other public buildings, such as armories and park buildings, for the purpose of providing class rooms for children. It has also been necessary to operate some of the schools on a two shift basis. Roosevelt, a predominantly Negro school, for example, operates now as a senior high school in the morning and as a junior high school in the afternoon. Wallace, an all white school, is operated the same way. This condition will be relieved in the very near future when the new Beckman and Bailly Junior High buildings will be occupied for the first time. Twenty-eight classes in the Drew Elementary School are also operated on a two shift basis. This situation will also be eliminated when the new junior high school buildings are occupied.