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tems. It has many social, cultural and administrative advantages which are apparent without enumeration. With the use of the neighborhood school districts in any school system with a large and expanding percentage of Negro population, it is almost inevitable that a racial imbalance will result in certain schools. Nevertheless, I have seen nothing in the many cases dealing with the segregation problem which leads me to believe that the law requires that a school system developed on the neighborhood school plan, honestly and conscientiously constructed with no intention or purpose to segregate the races, must be destroyed or abandoned because the resulting effect is to have a racial imbalance in certain schools where the district is populated almost entirely by Negroes or whites. On the other hand, there are many expressions to the contrary, and these expressions lead me to believe that racial balance in our public schools is not constitutionally mandated.

In its original opinion in Brown v. Board of Education, supra, the Supreme Court set the case for further argument on the question of how its decision should be implemented. One of the questions to be re-argued was:

"4. Assuming it is decided that segregation in public schools violates the Fourteenth Amendment

“(a) would a decree necessarily follow providing that, within the limits set by normal geographic districting, Negro children should forthwith be admitted to schools of their choice," (emphasis added). (see footnote 2, 349 U.S. 298, 75 S.Ct. 755)

Following re-argument, the Supreme Court handed down the second decision in the Brown case, 349 U.S. 294, 75 S.Ct. 753, which was in effect its instructions to the District Courts involved as to how its policy of desegregation should be carried out.

In instructing the District Courts, the Court said in part:

"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. *** To that end, the courts may consider 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, ***". (Emphasis added)

These instructions clearly indicate that the Supreme Court intended that the desegregation policy was to be carried out within the framework of "school districts and attendance areas". In carrying out the instructions of the Supreme Court, the three-judge District Court in the District of Kansas said in Brown v. Board of Education, 139 F.Supp. 468:

"It was stressed at the hearing that such schools as Buchanan are allcolored schools and that in them there is no intermingling of colored and white children. Desegregation does not mean that there must be intermingling of the races in all school districts. It means only that they may not be prevented from intermingling or going to school together because of race or color.

"If it is a fact, as we understand it is, with respect to Buchanan School that the district is inhabited entirely by colored students, no violation of any constitutional right results because they are compelled to attend the school in the district in which they live."

By this expression the District Court clearly indicated that even in a school system that had been segregated and where the burden was on the Board to show that their desegregation plan eliminated racial segregation as such, there could still be all colored schools if all of the students living in a properly constituted school district were Negroes, and that no constitutional rights were violated because students were compelled to attend the school in the disrict in which they lived.

In the recent case of Evans v. Buchanan, 207 F. Supp. 820, the Court said: "The court holds that the States do not have an affirmative, constitutional duty to provide an integrated education. The pertinent portion of the Fourteenth Amendment of the United States Constitution reads, 'nor [shall any State] deny any person within its jurisdiction the equal protection of the laws.' This clause does not contemplate compelling action; rather, it is a prohibition preventing the States from applying their laws unequally.

"When interpreting the equal protection clause in the Brown case the Supreme Court held only that a State may not deny any person on account

of race the right to attend a public school. Chief Justice Warren, speaking for the court said, "To separate them [Negroes] from others *** solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.' (Emphasis supplied.) The clear implication of this statement is that if races are separated because of geographic or transportation considerations or other similar criteria, it is no concern of the Federal Constitution. Thus, discrimination is forbidden but integration is not compelled."

The Court finds no support for the plaintiffs position that the defendant has an affirmative duty to balance the races in the various schools under its jurisdiction, regardless of the residence of students involved. Indeed, their own evidence is that such a task could not be accomplished in the Gary schools. Their expert, Dr. Wolff, submitted a proposal for balancing the races in most of the schools by eliminating four of the eight high schools now existing and building three new high schools and by transferring approximately 6,000 students from their neighborhood school to other schools, some of them great distances away. Even if his plan were adopted, Roosevelt School would still be 100% Negro and Bailly by his definition, would continue to be a segregated white school. In developing his plan, Dr. Wolff, in effect, admitted that he considered only the desirability of creating a racial balance in the schools and that costs, safety factors and other considerations were at least secondary to his main objective.

Unfortunately, the problems confronting the school administration are not as simple as Dr. Wolff's solution. For example, the financial burden of transporting 6,000 students from their home neighborhood to another would be a matter of considerable concern to the administrators of an already heavily taxed and indebted school district. Moreover, the administrative problem of choosing those who would be transferred and those who would not in a rapidly growing school system where the racial complexion of the various neighborhoods is constantly changing would be almost impossible to solve.

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 neighborhood 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 Fourteenth Amendment.

For reasons stated herein, the Court finds no violation by the defendant of the plaintiffs' constitutional rights.

Defendant's counsel will submit Findings of Fact, Conclusions of Law and Order consistent with this Opinion on or before February 11, 1963.

Senator ERVIN. I might add the opinion contains some very sensible observations by Judge Beamer with respect to neighborhood schools. Attorney General KENNEDY. I want to say how impressed I am by your strong feelings about the neighborhood schools.

Senator ERVIN. I thank you.

Attorney General KENNEDY. And I am happy that that strong feeling is going to be applied to the North and that it also will be applied to the South.

Senator ERVIN. And to show that some people in New York City agree with me, I want to have printed in the record at this point a clipping form from the New York Times for August 2, 1963, which states that the parents of certain children there have brought suit in the State supreme court in Brooklyn to obtain an injunction to prevent the transfer of their children from their neighborhood schools into other schools and that the suit is based upon my conviction-rather, their conviction which harmonizes with mine and Judge Beamer'sthat the action of a school board denying children the right to attend neighborhood schools and transporting them elsewhere to mix races in the schools is unconstitutional.

The CHAIRMAN (presiding). That will be done.

(The document referred to follows:)

[From the New York Times, Aug. 2, 1963]

SUIT FOR WHITE PUPILS CHARGES DISCRIMINATION-FOUR BROOKLYN PARENTS PROTEST CITY'S RACIAL QUOTA PLAN IN NEW JUNIOR HIGH

(By Leonard Buder)

The board of education has been accused of racial discrimination against white children in a suit brought by four white parents in State supreme court in Brooklyn.

The suit charged that the constitutional rights of white parents and their children were violated and that Negro parents and children were granted "superior" privileges by the school system.

The court action seeks to restrain the board from assigning white pupils from East Flatbush to a new junior high school in Brownsville on the basis of a racial "quota system." Under the board's zoning plan, which the parents are trying to upset, the new school would open in the fall with 35.2 percent Negroes, 33.6 percent Puerto Ricans, and 31.2 percent “others."

According to school officials, the suit is probably the first ever brought against the city system on the ground that white children were being discriminated against because of their race and color. Previous suits have charged discrimination against Negroes and Puerto Ricans.

The officials did not comment on the court action, but they noted that if the court upheld the parents, the decision would have a great effect on the system's integration efforts.

The complaint, which was served on school officials earlier in the week, is answerable on August 20.

The suit was brought by Mr. and Mrs. Isidore Balaban, of 749 East 93d Street and Mr. and Mrs. Arthur Gottlieb, of 540 Rockaway Parkway, both of Brooklyn. Their petition said that they were acting in behalf of Mark Balaban and Joel Gottlieb, both 12 years old, and 49 other children, and their parents or guardians.

The parents are being represented by Frank H. Gordon, of the law firm of Samet, Gordon & Riseman. The papers, which were served on the members of the board and top school administrators, were turned over to Leo A. Larkin, the city's corporation counsel.

The Brownsville school involved in the dispute is Junior High 275, at Linden Boulevard and Rockaway Avenue. It has figured in two recent protests over zoning policies.

On March 29, East Flatbush parents kept 7,000 children out of 13 neighborhood schools to protest plans to transport children from the area to Junior High School 275 in the fall. On June 15, there was a second sit-out demonstration, this time involving 3,600 children.

Brownsville parents have also objected to the zones drawn for Junior High School 275, but on different grounds. They have contended that a school opening with a student body of nearly 70 percent Negro and Puerto Rican was likely to become totally "segregated" because white parents would withdraw their children from a school in which they would be in a minority.

In their petition, the two white couples charged that the zoning plan-a modification of one originally proposed by the assistant superintendent in the area— ignored traditional neighborhood lines, traffic conditions, topographical barriers, and other factors.

They said that their children and others from East Flatbush would normally have attended Junior High School 285 at Beverly Road and Ralph Avenue. To take the place of the whites who will go to the Brownsville school, the petition said, the board would have to take Negro children to East Flatbush by bus.

The parents charged that the board's quota system was based "upon unreasonable, unconstitutional ethnic and racial considerations."

They added that the action deprived the white children of "the right to associate with their friends and to attend a public school in their neighborhood."

Senator ERVIN. I shall not dwell on titles IV and V. Title IV establishes the Community Relations Services.

Attorney General KENNEDY. May I just say, Senator, going back to the schools and the need for this legislation, that we didn't really

touch on that aspect of it in the southern communities the reason why we feel we need this further authority. It really goes back to what you said that the individual should have the right to attend his neighborhood school, that a Negro should not be transported past his neighborhood school and placed in a segregated institution.

That has happened, and the result has been very harmful for Negroes generally in the South. They have had a difficult time obtaining an education. Their education has been inadequate and the result is that our Negro population has suffered tremendously.

Now, again, we get back to what I have discussed before with you, the fact that there is need for this legislation. There is a desperate need for the legislation. The Brown decision, passed in 1954, has not been brought to fruition and the result is that many of our young people in the United States are still suffering.

Senator ERVIN. I oppose giving the Attorney General power to bring suits in that field. As brought out before, this bill would rob litigants of the rights established by other acts of Congress to trial by jury and limited punishment. Under the decision in the Brown case, the people of a particular school district have the right, if they wish to exercise it, to have their children attend schools attended by other children of their own race rather than compulsorily integrated schools. From my observation of the way the Federal Government operates and of the enjoyment which Federal officials get from "throwing their weight around," I know that the provisions of the bill authorizing the Attorney General to bring suits to desegregate schools will be used to pressure the people of school districts to surrender this right. But I think that you and I might argue a long time about that.

Attorney General KENNEDY. What I do not quite understand, Senator, is your argument that it is unconstitutional to take a student past his neighborhood school and bring him to another school to prevent racial imbalance, yet not argue with equal vigor that it is unconstitutional to take a Negro student past his school and bring him to a school just because it is segregated. I do not understand why you are not as vigorous in your denunciation of that as you are of the other. Senator ERVIN. I object to clothing the Attorney General of the United States, I do not care who he may be, with the discretionary power to bring suits for some people and refuse to bring suits for other people when all of them are in like circumstances and to bring suits against some officials and refuse to bring suits against other officials when the situation of all such officials is identical.

Attorney General KENNEDY. Senator, would you offer an amendment, then, and support it, that the Attorney General should bring a suit in every case?

Senator ERVIN. I would favor an amendment that

Attorney General KENNEDY. Would you support that, Senator? Senator ERVIN. I would favor an amendment striking out the part of the bill which grants the Attorney General such vast powers to be used according to his caprice or whim.

Attorney General KENNEDY. Would you support an amendment to empower the Attorney General to bring suits in every such case? Senator ERVIN. No. I am not in favor of expanding the power of any Attorney General.

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Attorney General KENNEDY. But Senator, if you please, you were vigorous in your argument in favor of a white child's attending his neighborhood school. Then we talked about southern Negroes who cannot attend their neighborhood schools, and whose fathers and grandfathers have never been permitted to attend their neighborhood schools, but have had to attend segregated schools just for Negroes. You do not seem concerned about that at all, Senator. What I would like to hear is a denunciation of that practice.

Senator ERVIN. What I am denouncing is an attempt to concentrate and centralize in the Federal Government at Washington the vast discretionary powers which this bill would give to the President, the Attorney General, and the Federal Commissioner of Education.

I am trying to show what this bill contains. And I am not going to make speeches for the purpose of expressing your opinions on any subject.

Attorney General KENNEDY. But, Senator, with all due respect, you really have not answered this point.

Senator ERVIN. Am I supposed to be answering your questions or are you supposed to be answering mine?

Attorney General KENNEDY. I will be glad to answers yours, Senator, but I want to leave the record clear and point out the fact that you have spent a good deal of time this morning denouncing a practice that you feel exists in the North, whereas you do not have any words of criticism for a similar situation in the South under which many hundreds of thousands of our fellow citizens have suffered for a long period of time.

Senator ERVIN. I am not discussing things which the courts have already decided. What I am trying to discuss is the provision of this bill authorizing the use of tax money to implement ideas of people who believe that children should be denied the right to attend their neighborhood schools and transported elsewhere. That is what I am discussing.

Attorney General KENNEDY. Senator, there has been great suffering by Negroes in the Southern States. I have some charts here, some figures. I would like to offer them, if I may, to the committee. Could I do that?

The CHAIRMAN. They will be admitted.

Attorney General KENNEDY. Would you like to see them in the form of charts, Senator?

Senator ERVIN. I think there has been a great deal suffered by people in all areas of the United States.

Senator KEATING. Would the distinguished Senator yield, while this is being prepared, for a question?

Senator ERVIN. I will, Senator.

But since the Senator has charged me with filibustering in a very pleasant way, I would like to finish these things.

Senator KEATING. Well, I think my question might clear up a misunderstanding at this point. The Senator has a distinguished record as a lawyer and as a jurist and all of us who have served here would recognize that.

Does he not also recognize that there must be discretion vested in a prosecuting officer or a law-enforcement officer or one in the position of attorney general as to those cases which he will bring and will not bring? Is not that inherent in our entire judicial process? And if he

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