public school integration in the u.s. supreme court
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School Integration 1s 11
Remedies Fall 2014
Fordham Law School
Integration of SchoolsGeorge W. Conk
Adjunct Professor of Law & Senior Fellow, Stein Center for Law &Ethics
Room 409
212-636-7446
Torts Today: http://tortstoday.blogspot.com
Otherwise
Commentar ies on Law, Language & Poli tics
Blackstonetoday.blogspot.com
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Chattel Slaverythe original sin
No Person held to Service or Labour inone State, under the Laws thereof,escaping into another, shall, inConsequence of any Law or Regulationtherein, be discharged from such Serviceor Labour, but shall be delivered up onClaim of the Party to whom such Service
or Labour may be due. U.S. Const. Article 4, 3
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AMENDMENT XIII.
"Neither slavery nor involuntary
servitude except as a punishment for
crime, whereof the party shall have
been duly convicted, shall exist
within the United States, nor any
place subject to their jurisdiction."
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AMENDMENT XIV.
All persons born or naturalized in theUnited States, and subject to the
jurisdiction thereof, are citizens of the
United States and of the State whereinthey reside.
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AMENDMENT XIV
No State shall make or enforce any law
which shall abridge the privileges or
immunities of citizens of the United States,
nor shall any State deprive any
person of life, liberty, or property,
without due process of law, nor deny
to any person within its jurisdiction
the equal protection of the laws.
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Private discrimination permitted
Segregation allowed
American Apartheid
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Civil Rights Act of 1866
That there shall be no discrimination in
civil rights or immunities among the
inhabitants of any State or Territory of the
United States on account of race, color, or
previous condition of slavery; but the
inhabitants of every race and color,
without regard to any previous condition
of slavery or involuntary servitudeSchool Integration 7
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Civil Rights Act of 1866
shall have the same right to make andenforce contracts, to sue, be parties, andgive evidence, to inherit, purchase, lease,sell, hold, and convey real and personal
property, and to full and equal benefit ofall laws and proceedings for the securityof person and property, and shall be
subject to like punishment, pains, andpenalties, and to none other, any law,statute, ordinance, regulation, or custom
to the contrary notwithstanding.School Integration 8
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The Civil Rights Cases - 1883
Dismissing federal indictments under
Civil Rights Act of 1875 for refusing
admission to persons of color at the
Grand Opera House in New York
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The Civil Rights Cases - 1883
Until some State law has been passed, or
State actionhas been taken, adverse to
the rights of citizens sought to be
protected by the Fourteenth Amendment,
no legislation of the United States can
be called into activity: for the prohibitions
of the amendment are against State laws
and acts done under State authoritySchool Integration 10
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Plessy v. Ferguson (1896)
We cannot say that a law which authorizes
or even requires the separation of thetwo races in public conveyances isunreasonable, or more obnoxious to the
Fourteenth Amendment than the acts ofCongress requiring separate schools forcolored children in the District of
Columbia, the constitutionality of whichdoes not seem to have been questioned,or the corresponding acts of statelegislatures.
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Plessy v. Ferguson (1896)
The fallacyof the plaintiff's argument is inthe assumption that the enforcedseparation of the two races stamps the
colored race with a badge of inferiority. If this be so, it is not by reason of
anything found in the act, but solely
because the colored race chooses to putthat construction upon it.
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Private action to impede exercise of right to
freely labor not reached by the 13th
AmendmentU.S. v. Hodges (1905) SEC. 1977. All persons within the jurisdiction of
the United States shall have the same right in
every State and Territory to make and enforcecontracts, to sue, be parties, give evidence, andto the full and equal benefit of all laws andproceedings for the security of persons and
property as is enjoyed by white citizens, andshall be subject to like punishment, pains,penalties, taxes, licenses, and exactions of everykind, and to no other."
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Jim Crow
De Jure segregation of
schools
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An Act to Prohibit White and Colored
Persons from Attending the Same School.
Ky. Acts 1904
Sec. 1. That it shall be unlawful for any
person, corporation, or association of
persons to maintain or operate any
college, school, or institution where
persons of the white and negro races are
both received as pupils for instruction
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An Act to Prohibit White and Colored
Persons from Attending the Same School.
Ky. Acts 1904
Sec. 3. It shall be unlawful for any whiteperson to attend any school or institutionwhere negroes are received as pupils or
receive instruction, and it shall be unlawfulfor any negro or colored person to attendany school or institution where white
persons are received as pupils or receiveinstruction.
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Harlan, dissenting (1908)
Berea College v. Kentucky
The capacity to impart instruction to
others is given by the Almighty for
beneficent purposes; and its use may notbe forbidden or interfered with by
government,certainly not, unless such
instruction is, in its nature, harmful to the
public morals or imperils the public safety.School Integration 17
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Harlan, dissenting (1908)
Berea College v. Kentucky
But even if such right be not strictly aproperty right, it is, beyond question, partof one's liberty as guaranteed againsthostile state action by the Constitution ofthe United States.
This court has more than once said thatthe liberty guaranteed by the 14th
Amendment embraces the right of thecitizen to be free in the enjoyment of allhis faculties, and to be free to use them
in all lawful ways.School Integration 18
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De jure segregation of schools - 1954
Mandatory Delaware, Maryland, Virginia, WestVirginia, Georgia, North Carolina, SouthCarolina, Florida, Tennessee, Kentucky,
Alabama, Mississippi, Louisiana, Arkansas,Texas, Oklahoma, and Missouri, and theDistrict of Columbia
Permissive
Arizona, Kansas, New Mexico, Wyoming
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George E.C. Hayes, Thurgood Marshall, andJames Nabrit after the decision in Brown
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Brown v. Board (1954)
we cannot turn the clock back to 1868
when the Amendment was adopted, oreven to 1896 when Plessy v. Fergusonwas written. We must consider publiceducation in the light of its fulldevelopment and its present place in
American life throughout the Nation. Onlyin this way can it be determined if
segregation in public schools deprivesthese plaintiffs of the equal protection ofthe laws.
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Brown v. Board of Ed. I (1954)
Class actions against public school
authorities in Kansas, South Carolina,Virginia, Delaware
Under 28 USC 2281 & 42 USC 1983
Seeking declarations state segregationstatutes unconstitutional under 14th
Amendment
Ordering admissionof Negro students towhite public schools
By parents of children who will suffer
irreparable harm School Integration 22
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Brown v. Board of Education I
Does segregation of children in public
schools solely on the basis of race, even
though the physical facilities and other"tangible" factors may be equal, deprive
the children of the minority group of equal
educational opportunities?
We believe that it does.
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Irreparable harm
Segregation of white and colored
children in public schools has adetrimental effect upon the coloredchildren.
The policy of separating the races isusually interpreted as denoting theinferiority of the negro group.
A sense of inferiority affects themotivation of a child to learn.
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Irreparable harm
Segregationwith the sanction of law,therefore, has a tendency to retard
the educational and mental
development of negro children and to
deprive them of some of the benefits
they would receive in a racially
integrated school system.
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CJ Warren in Bolling v. Sharpe(1954)
Barring segregation in the District of Columbia
Given the holding in Brownregarding the
limits of state authority, it is unthinkable
that the same Constitution would impose a
lesser duty on the Federal Government.
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Brown II1955
Traditionally, equity has beencharacterized by a practical flexibility inshaping its remedies and by a facility for
adjusting and reconciling public andprivate needs.
These cases call for the exercise of these
traditional attributes of equity power.
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Brown IIall deliberate speed
The cases are remanded to the DistrictCourts to take such proceedings and enter
such orders and decrees as are
necessary and proper to admit to public
schools on a racially nondiscriminatory
basis with all deliberate speed the parties
to these cases.
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Th B i di t 1955
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The Briggs dictum - 1955
The Constitutiondoes not requireintegration. It merely forbidsdiscrimination.
It does not forbid such segregation asoccurs as the result of voluntary action.
It merely forbids the use of governmentalpowerto enforce segregation.
The 14thAmendment is a limitation uponthe exercise of power by the state not alimitation upon the freedom of individuals.
Briggs v. Elliott, 132 F.Supp. 776 (E.D.S.C.1955)School Integration 29
F R C P 65 Injunctions
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F.R.C.P. 65Injunctions
fairreasonable - adequate - in the public
interest Plaintiffs must show:
(1) unless the restraining order issues, they willsuffer irreparable harm;
(2) the hardship they will suffer absent the orderoutweighs any hardship the defendants would sufferif the order were to issue;
(3) they are likely to succeed on the merits of theirclaims;
(4) the issuance of the order will cause nosubstantial harm to the public; and
(5) they have no adequate remedy at law.
30Ch. 4 Injunctions
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FRCP 65 - d) CONTENTSANDSCOPEOF
EVERYINJUNCTIONANDRESTRAININGORDER.
( (1) Contents.Every order granting an
injunction and every restraining ordermust:
(A) state the reasons why it issued; (B) state its terms specifically; and
(C) describe in reasonable detailand not
by referring to the complaint or otherdocumentthe act or acts restrained orrequired.
SECv. Citigroup Global Markets -Remedies 31
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Little Rock 1957
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U.S.A. v. Jefferson County
The Situation as Judge
Wisdom found it in 1965
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The situation in 1965 The public school districts in the
consolidated cases now before this Courthad a school population of
155,782 school children
59,361 of whom were Negro
Under the existing court-approveddesegregation plans
110 Negro children,.019 per cent of theschool population, attend formerly "white"schools
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We recognize the problems
(1) Some would scuttle public
education rather than send their
children to schools with Negro
children
(2) White flight -reinforces urbanneighborhood school patterns.
3) Private schools, aided by state grants,
have mushroomedSchool Integration 35
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We recognize the problems
(3) Many white teachers prefer not toteach in integrated public schools.
(4) Many Negro children prefer tofinish school where they started.These children will probably have tosettle for unskilled occupations.
(5) Gap between white and Negroscholastic achievements
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The Civil Rights Act of 1964
Title IV
Bars federal aid to schools thatdiscriminate
Offers federal aid to schools to carryout desegregation
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Federal aid conditioned on non-
discriminationCivil Rights Act of 1964
"No person in the United States shall,on the ground of race, color, ornational origin, be excluded from
participation in, be denied thebenefits of, or be subjected todiscrimination under any program or
activity receiving Federal financialassistance."
42 U. S. C. 2000d.
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The Civil Rights Act of 1964
(b) "Desegregation" means theassignment of students to publicschools and within such schools without
regard to their race, color, religion, ornational origin
But "desegregation" shall not mean the
assignment of students to public schoolsin order to overcome racial imbalance.
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ff C ( th C
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Jefferson County (5thCir. en
banc1966) It is ORDERED, ADJUDGED and DECREED
that the defendants, their agents, officers,employees and successors and all those in
active concert and participation with them,be and they are permanently enjoinedfrom discriminating on the basis of race or
color in the operation of the schoolsystem.
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The Briggs dictum:
It is a settled constitutional principle that
the Fourteenth Amendment does not
require compulsory integration but only
proscribes segregation. It is the state
action segregation which violates the
equal protection clause.
Expressly overruled in Jefferson
Count School Integration 41
J ff C t 5th Ci it
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Jefferson County5thCircuit -
en banc 1967
[All] administering public schools
have have the affirmative duty under
the 14thAmendment to bring about
an integrated, unitary school system
in which there are no Negro schools
and no white schoolsjust schools.
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J ff C t (5th Ci
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Jefferson County (5thCir. en
banc1966)
As set out more particularly in the body of
the decree, they shall take affirmative
action to disestablish all school
segregation and to eliminate the
effects of the dual school system
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De facto segregation
Left to other courts for otherdays
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HEW Guidelines (Jefferson en banc)
The court gave great weight to
the 1965 and 1966 HEW
Guidelines(which) establish
minimum standards clearly
applicable to disestablishing
state-sanctioned segregation.
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J ff C t ( b 1966)
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Jefferson County (en banc 1966)
Repudiation of Briggs Dictum: De jure segregated schools must take
affirmative action to integrate schools Uniform decree on free choice
Conformity with HEW regulations andguidelines presumptively adequate
Judicial review of effectivenessSchool Integration 46
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From the panel decision - U.S. v. Jefferson
County, 372 F. 2d 836 (5
th
Cir. 1966)http://openjurist.org/372/f2d/836/united-states-v-jefferson-county-board-of-education
Judge Wisdom on howdesegregation had been
obstructed
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http://openjurist.org/372/f2d/836/united-states-v-jefferson-county-board-of-educationhttp://openjurist.org/372/f2d/836/united-states-v-jefferson-county-board-of-educationhttp://openjurist.org/372/f2d/836/united-states-v-jefferson-county-board-of-educationhttp://openjurist.org/372/f2d/836/united-states-v-jefferson-county-board-of-educationhttp://openjurist.org/372/f2d/836/united-states-v-jefferson-county-board-of-educationhttp://openjurist.org/372/f2d/836/united-states-v-jefferson-county-board-of-educationhttp://openjurist.org/372/f2d/836/united-states-v-jefferson-county-board-of-educationhttp://openjurist.org/372/f2d/836/united-states-v-jefferson-county-board-of-educationhttp://openjurist.org/372/f2d/836/united-states-v-jefferson-county-board-of-educationhttp://openjurist.org/372/f2d/836/united-states-v-jefferson-county-board-of-educationhttp://openjurist.org/372/f2d/836/united-states-v-jefferson-county-board-of-educationhttp://openjurist.org/372/f2d/836/united-states-v-jefferson-county-board-of-educationhttp://openjurist.org/372/f2d/836/united-states-v-jefferson-county-board-of-educationhttp://openjurist.org/372/f2d/836/united-states-v-jefferson-county-board-of-educationhttp://openjurist.org/372/f2d/836/united-states-v-jefferson-county-board-of-educationhttp://openjurist.org/372/f2d/836/united-states-v-jefferson-county-board-of-educationhttp://openjurist.org/372/f2d/836/united-states-v-jefferson-county-board-of-education -
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Obstacles to enforcement of
Browns mandate
The dead hand of the old past and theclosed fist of the recent past
- Little Rock Central High School -1957
- Ole MissRoss Barnett standing in theschool house door - 1961
- Alabamasegregation now,segregation forever George Wallace 1963
- Louisiana bundles of statutes aimed atdefeating desegregation.
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Ob t l t j di i l
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Obstacles to judicial
enforcement of Brown
2) Even school authorities willing to
act have moved slowly because of
uncertainty as to the scope of their
duty to act affirmatively.
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Obstacles to judicial enforcement of
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Obstacles to judicial enforcement of
Brown
(a) a misplaced reliance on theBriggs dictum that the Constitution
"does not require integration
(b) a misunderstanding of the Brown
II mandate, desegregate with "all
deliberate speed
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Ob l j di i l f f
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Obstacles to judicial enforcement of
Brown
(c) a mistaken notion that transfers
under the Pupil Placement Laws
satisfy desegregation requirements.
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Ob t l t j di i l f t f
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Obstacles to judicial enforcement of
Brown
(2) Case by case development of the
law is a poor sort of medium for
reasonably prompt and uniform
desegregation.
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Ob t l t j di i l f t f
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Obstacles to judicial enforcement of
Browns mandate
Courts cannot give advisory opinions,
and the disciplined exercise of the
judicial function properly makes
courts reluctant to move forward in
an area of the law bordering the
periphery of the judicial domain.
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Obstacles to judicial enforcement
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Obstacles to judicial enforcement
(3) The contempt power is ill-suited
to serve as the chief means of
enforcing desegregation.
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Ob t l t j di i l f t
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Obstacles to judicial enforcement
(4) School desegregation plans are often
woefully inadequate; they rarely provide
necessary detailed instructions and
specific answers to administrative
problems.
Mostjudges do not have sufficient
competence -- they are not educators or
school administratorsSchool Integration 55
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Obstacles to judicial enforcement
5) Until 1964 the absence of
Congressional statutory recognition
of desegregation as the law of the
land
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Why freedom of choice plans
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Why freedom of choice plans
failed. U.S.C.R.C. 1967
"Freedom of choice plans have
tended to perpetuate racially
identifiable schools in the Southern
and border States
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Why freedom of choice plans
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Why freedom of choice plans
failed. They require affirmative action by
both Negro and white parents andpupils before disestablishment [of
dual school systems) can beachieved.
"(a) Fear of retaliation and hostility
from the white community continueto deter many Negro families fromchoosing formerly all-white schools
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Why freedom of choice plans
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Why freedom of choice plans
failed. "(b) In some areas of the South,
Negro families with childrenattending previously all-white
schools under free choice plans weretargets of violence, threats ofviolence and economic reprisal by
white persons and Negro childrenwere subjected to harassment bywhite classmates
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Why freedom of choice plans
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Why freedom of choice plans
failed.
(c) In some areas of the South public
officials improperly influenced Negro
familiesto keep their children in
Negro schools and excluded Negro
children attending formerly all-white
schools from official functions
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Why freedom of choice plans
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Why freedom of choice plans
failed. "(d) Poverty deters many Negro
families in the South from choosingformerly all-white schools.
Some parents are embarrassed to permittheir children to attend such schoolswithout suitable clothing.
Special fees are assessed for courseswhich are available only in the whiteschools
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Why freedom of choice plans
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Why freedom of choice plans
failed.
"(e) Improvements in facilities and
equipment . . . have been instituted
in all-Negro schools in some school
districts in a manner that tends to
discourage Negroes from selecting
white schools."
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The Corrected Decree and theDissent
Integration, part II
Jefferson County
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Louisiana v United States
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Louisiana v. United States,
380 U.S. 145, 154 (U.S. 1965)
We bear in mind that the court has
not merely the power but the duty to
render a decree which will so far as
possible eliminate the discriminatory
effects of the past as well as bar like
discrimination in the future.
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"The time for mere 'deliberate speed'
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The time for mere deliberate speed
has run out"
The transition to a unitary, nonracial
system of public education was and
is the ultimate end to be brought
about.
Brown I. Green v. New Kent County[SCOTUS (1968)]
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Root and branch
School boards operating state-compelleddual systems were nevertheless clearlycharged with the affirmative duty to take
whatever steps might be necessary toconvert to a unitary system in which racialdiscrimination would be eliminated root
and branch. it was to this end thatBrown II commanded school boards tobend their efforts.
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Integration and desegregation
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Integration and desegregation
Wisdom & Thornberry
We use the terms "integration" and"desegregation" of formerly segregatedpublic schools to mean the conversion of ade jure segregated dual system to aunitary, nonracial (nondiscriminatory)system-- lock, stock, and barrel: students,faculty, staff, facilities, programs, and
activities.
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The corrected decree
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The corrected decree Speed of desegregation
Exercise of Choice Transfers
Services, facilities, activities and programs
School equalization (remedial programs) New Construction
Faculty & staff
Reports to the court
Explanatory letter
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Judge Griffin Bells dissent
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Judge Griffin Bell s dissent
Separation of powers eroded
Personal liberty unreasonably restricted Majority opinions fail the tests of fairness
and clarity
Approval of HEW Guidelines violatesprocedural due process
The standard one that works is
unconstitutionally vague De Jure - Defacto distinction is unfair
Briggs dictum is settled lawSchool Integration 69
Judge Griffin Bells dissent
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Judge Griffin Bell s dissent
I am unable to agree with the decree or
the opinion as to: De facto and de jure segregation
The guidelines
The proposed decreeAttendance percentages, proportions and
freedom of choice
Enforced integration
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Corrected decree
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Corrected decree
SPEED OF DESEGREGATION
Commencing with the 1967-68 schoolyear, in accordance with this decree, allgrades, including kindergarten
grades, shall be desegregated andpupils assigned to schools in thesegrades without regard to race or
color.
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Corrected decree
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EXERCISE OF CHOICE
(a) Who May Exercise Choice. A choice of
schools may be exercised by a parent orother adult person serving as the student'sparent.
A student may exercise his own choice ifhe (1) is exercising a choice for the ninthor a higher grade, or (2) has reached the
age of fifteen at the time of the exerciseof choice.
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Corrected decree
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Corrected decree
Choice period
The period for exercising choice shall
commence May 1, 1967 and end June 1,
1967, and in subsequent years shall
commence March 1 and end March 31
preceding the school year for which the
choice is to be exercised.
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Inferior schools
In schools heretofore maintained forNegro students, the defendants shall takeprompt steps necessary to providephysical facilities, equipment, courses of
instruction, and instructional materials ofquality equal to that provided in schoolspreviously maintained for white students.
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Corrected decree
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Corrected decree
Choice period
No student or prospective student who
exercises his choice within the choice
period shall be given any preference
because of the time within the period
when such choice was exercised.
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Corrected decree
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Corrected decree
Preference in Assignment
In assigning students to schools,
No preferences shall be given to anystudent for prior attendance at a school
and,
Except with the approval of court inextraordinary circumstances,
No choice shall be denied for any reasonother than overcrowding.
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Corrected decree
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Corrected decree
Transfers for students
Any student shall have the right at
the beginning of a new term, to
transfer to any school from which he
was excluded or would otherwise be
excluded on account of his race or
color.
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Corrected decree
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Services, Facilities, Activities, and
Programs No student shall be segregated or
discriminated against on account of raceor color in any service, facility, activity, orprogram (including transportation,athletics, or other extracurricular activity)that may be conducted or sponsored by
the school in which he is enrolled.
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Corrected Decree
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Corrected Decree
Services, facilities, activities, and
programsAll school use or school-sponsored use of
athletic fields, meeting rooms, and all
other school related services, facilities,activities, and programs such ascommencement exercises and parent-teacher meetings which are open topersons other than enrolled students, shallbe open to all persons without regard torace or color
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Inferior Schools
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Inferior Schools
In schools heretofore maintained for
Negro students, the defendants shall take
prompt steps necessary to provide
physical facilities, equipment, courses of
instruction, and instructional materials of
quality equal to that provided in schools
previously maintained for white students.
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NEW CONSTRUCTION
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NEW CONSTRUCTION
The defendants, to the extent consistent
with the proper operation of the school
system as a whole, shall locate any new
school and substantially expand any
existing schools with the objective of
eradicating the vestiges of the dual
system.
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F lt d t ff
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Faculty and staff
Teachers, principals, and staff membersshall be assigned to schools so that thefaculty and staff is not composed
exclusively of members of one race. Whereever possible, teachers shall be
assigned so that more than one teacher of
the minority race (white or Negro) shall beon a desegregated faculty
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F l & ff
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Faculty & staff
Dismissals
A report containing any such proposeddismissals, and the reasons therefor, shall
be filed with the Clerk of the Court,serving copies upon opposing counsel,within five (5) days after such dismissal,
demotion, etc., as proposed.
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G iffi B ll di t
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Griffin Bell - dissent
Sumptuary laws
Elizabethan laws regulating dress and food
Hence
Any law regulating customs deemedoffensive to the community
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What liberty does Judge Bell
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What liberty does Judge Bell
have in mind? History records that sumptuary laws
have been largely unobservedbecause they failed to recognize or
were needlessly restrictive ofpersonal liberty.
Our experiments with sumptuary-like
laws are exemplified by the DredScott decision, Reconstruction, andthe prohibition laws. All failed.
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Th t t lib t
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Threat to liberty The advance approval given to a
requirement of compelled integrationexceeds what is constitutionallypermissible under the Fourteenth
Amendment.
The (opinions) cast a long shadow overpersonal liberty as it embraces freedom of
association and a free society. They dolittle for the cause of education.
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D J D f t
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De Jure - Defacto The unfairness which inheres in the
majority opinion stems from the newdoctrine which the original panelfashioned under the concept of classifying
segregation into two types: de juresegregation, called apartheid, for theseventeen southern and border states
formerly having legal segregation; and defacto segregation for the other states ofthe nation.
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D J D f t
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De Jure - Defacto The original opinion requires affirmative
action on the part of the school authoritiesin the de jure systems to integrate theschools.
The neighborhood school systems of thenation with their de facto segregation areexcused.
The Constitution does not reach them.
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Th id li
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The guidelines
A uniform decree within the limits ofminimum standards would aid schoolboards and the district courts but the
uniform decree entered in this case can befaulted because of its detail. This comesabout through the unbounded aim of the
court to track the HEW guidelines. What is the problem he sees?
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The guidelines
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e gu de es
It must be remembered that decrees may
have to be enforced by the court and acourt should guard against being put inthe unfeasible position of having to hear
motions based on the alleged breach ofsome minor and insubstantial provision ofits decree.
It is also not clear to me that sufficientlatitude is left to the district courts toadjust such practical difficulties as may
i d th d t il f th d