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James M. Cannon Files (Ford Administration)
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The original documents are located in Box 6, folder "Busing (14)" of the James M. Cannon
Files at the Gerald R. Ford Presidential Library.
Copyright Notice
The copyright law of the United States (Title 17, United States Code) governs the making of
photocopies or other reproductions of copyrighted material. Gerald Ford donated to the United
States of America his copyrights in all of his unpublished writings in National Archives collections.
Works prepared by U.S. Government employees as part of their official duties are in the public
domain. The copyrights to materials written by other individuals or organizations are presumed to
remain with them. If you think any of the information displayed in the PDF is subject to a valid
copyright claim, please contact the Gerald R. Ford Presidential Library.
Some items in this folder were not digitized because it contains copyrighted
materials. Please contact the Gerald R. Ford Presidential Library for access to
these materials.
Digitized from Box 6 of the James M. Cannon Files at the Gerald R. Ford Presidential Library
THE WHITE HOUSE
WASHINGTON
October 28, 1976
File
MEMORANDUM FOR THE PRESIDENT
FROM:
The Wilmington By Busing Case
PHILIP BUCHEN
JAMES CANNON
SUBJECT:
Yesterday, the Department of Justice filed a friend-of-
the-court brief in the Wilmington busing case (Delaware
State Board of Education V. Evans), arguing that the
lower court went too far in ordering interdistrict busing
between the City of Wilmington and ten suburban school
districts. This memorandum provides background on the
case and outlines the Department's arguments and reason
for intervening.
BACKGROUND
As you know, in March 1975, a three-judge District Court
in Delaware concluded that, as a result of a 1968 enact-
ment, the State of Delaware had discriminated against
black students in Wilmington in violation of the Constitu-
tion and that, to remedy such discrimination, an inter-
district plan for reassignment of students would probably
be necessary. This holding was appealed to the Supreme
Court and affirmed 5-3. On remand, the three-judge court
fashioned an interdistrict desegregation plan which, in
effect, combined the City of Wilmington and ten surrounding
school districts in northern New Castle County into one
school district, and required that every grade in every
school in the new district have a student population which
was not less than 10 percent nor more than 35 percent
Black. The defendants in the case have appealed this order
to the Supreme Court, maintaining, among other things, that
the District Court went too far in requiring interdistrict
busing. The plaintiff-appellees have until November 10
to file their answer.
FORD. & LIBRARY GERALD
-2-
DEPARTMENT OF JUSTICE POSITION
In its brief, the Department takes two positions. First,
the Department maintains that the Supreme Court does not
have jurisdiction to hear the appeal from the remedial
order of the three-judge District Court, since the three-
judge court was improperly convened. The Department argues
that the appeal should be heard by the Court of Appeals.
The Department goes on to state, however, that the case
is an important one in the evolution of constitutional
principles pertaining to racial discrimination in the
schools and that it should receive the attention of either
the Supreme Court or the Third Circuit Court of Appeals
as expeditiously as possible.
Secondly, on the merits of the case, the Department argues
that the proper approach to school desegregation cases
requires a court to seek to determine, as precisely as
possible, the consequences of acts constituting illegal
discrimination and to eliminate the continuing effects.
The Department believes that, in merging Wilmington and
the ten surrounding suburban districts into one school
district and requiring racial balance in each school,
the District Court went beyond this requirement.
The Attorney General and the Solicitor General both felt
(a) that this was a proper case for the Department to
enter in light of the serious questions presented, and
(b) that it was necessary to file their brief at this
time in order to give the plaintiffs (i.e., parents
seeking a remedy) in the case an adequate opportunity to
study the Department's position before filing their
response.
The Department's position is consistent with the approach
taken in your 1976 busing proposal.
We have attached the story appearing in this morning's
Washington Post for your information.
Attachment
FORD
LIBRARY
U.S. Asks High Court Test
On Limits 10/28/76 to Busing Orders
By John P. MacKenzie
-
cisely as possible, the consequences of
Washington Post Staff Writer
the acts constituting the illegal dis-
The Justice Department gave notice
crimination and to eliminate their
yesterday that it welcomes an early
continuing effects."
Supreme Court test of whether fed-
The lower court found racial dis-
THE WHITE HOUSE
WASHINGTON
October 30, 1976
MEMORANDUM FOR:
DICK CHENEY
FROM:
JIM CANNON
Buffald Jul
FORD
SUBJECT:
Congressman Jack Kemp suggests the President be prepared
for these issue:
1. School Busing
Under a court order, Buffalo began limited pupil assign-
ment in September, and the School Board must come up in
January with a plan for complete desegregation.
About 46% of Buffalo school enrollment is black, and
the School Board is under court order to "substantially
reflect" in its plan this racial balance throughout
the Buffalo school system.
Last Wednesday the nine-member Buffalo School Board
voted unanimously to ask the U.S. Attorney General
to intervene in its school busing problem. The Board
Chairman is a black woman who was elected city-wide,
and two other members of the board are black.
The Justice Department has not yet received any formal
request from the Buffalo School Board to intervene.
The Justice Department Community Relations Service is
following the Buffalo school desegregation situation
closely and is working with community groups to assist
them in developing an effective plan.
From Kemp and others in Buffalo, it is clear that the
community leaders of Buffalo would like to resolve their
desegregation problems on their own, and not have to
follow a plan imposed or dictated by a Federal Court.
2
Recommendation
That in Buffalo the President avoid any commitment to
have the U.S. Attorney General enter the Buffalo busing
case at this time.
That the President reassert his firm position:
-- Every American community should be given the
opportunity to work out a school desegregation
plan on its own initiative.
-- The President is responsible to see that the
laws and court orders are faithfully executed.
-- The President is personally opposed to court-
ordered forced busing to achieve racial balance.
Jack Marsh and Jim Cavanaugh concur.
THE WHITE HOUSE
WASHINGTON
October 28, 1976
MEMORANDUM FOR:
JACK MARSH
FROM:
PAT ROWLAND PR
SUBJECT:
Buffalo Stop
Congressman Jack Kemp called regarding the President's
stop Saturday night and Sunday morning in Buffalo.
Wednesday night the Buffalo School Board voted to ask the
U.S. Attorney General to intervene in their school bussing
problem. Kemp had a call from Millard Brown, Editor of the
BUFFALO EVENING NEWS, a newspaper which is friendly to the
President. The editor suggested off the record that the
President mention bussing in his stop in Buffalo.
Brown thinks that any encouragement that the President can
give the people of Buffalo that the Justice Department will
seriously consider the request of the school board will make
headlines in the newspapers. If there is any possibility
that such a statement is going to be made if the newspapers
could be told in advance they could banner it on Saturday
which would stimulate people to attend the President's rally
on Sunday. Kemp, of course, endorses Brown's suggestion.
wined your interned when A , Dated
NOW are can watmen only on
Const sunns
FORD i LIBRARY 928470
w/o comer by why on
cont - NO bon for Federal
interestion
MEMORANDUM
THE WHITE HOUSE
INFORMATION
WASHINGTON
(REQUEST)
October 29, 1976
MEMORANDUM FOR:
Jim Cannon
FROM:
Dick Parsons
FORD i LIBRARY GERALD
SUBJECT:
Buffalo School Desegregation Case
As I understand it, the facts in this case are as follows:
On April 30, 1976, the Federal District Court for the Western
District of New York held that the School Board of the City of
Buffalo and the Board of Regents of the State of New York had
\
unlawfully discriminated against minority students in the
Buffalo public school system. Subsequently, on July 9, 1976,
the Court ordered the defendants to submit a desegregation plan
in two parts: Part 1, to be implemented for the 1976 school
year, would require only limited student assignment; and Part 2,
which was to be submitted to the Court by October 14, 1976, would
require complete desegregation.
The State of New York, on behalf of the State Board of Regents,
has appealed the District Court's order on the limited grounds
3
that the Board of Regents was improperly joined as a defendant
in the case. The City of Buffalo, however, has not appealed the
order.
Last week, the City requested additional time in which to submit
its "Phase 2" plan. It has been given until January 5, 1977.
It appears, therefore, that there is no appeal on the basic
findings of the case in which the Federal government could join.
In fact, I am advised by both Federal and State representatives
in Buffalo that reaction to the Court's order has been mild.
However, I am told that several disgruntled City Councilmen have
attempted to intervene in the case for the purpose of pursuing
an appeal.
If the President is asked about this situation, I think he should
simply indicate that we are following it closely (through the
Justice Department's Community Relations Service) and that he is
hopeful that the responsible elements of the community will work
with the Court to develop an effective plan which meets the
requirements of the Constitution.
THE WHITE HOUSE
WASHINGTON
October 28, 1976
MEMORANDUM FOR:
JACK MARSH
FROM:
PAT ROWLAND PR
FORD i GERALD LIBRARY
SUBJECT:
Buffalo Stop
Congressman Jack Kemp called regarding the President's
stop Saturday night and Sunday morning in Buffalo.
Wednesday night the Buffalo School Board voted to ask the
U.S. Attorney General to intervene in their school bussing
problem. Kemp had a call from Millard Brown, Editor of the
BUFFALO EVENING NEWS, a newspaper which is friendly to the
President. The editor suggested off the record that the
President mention bussing in his stop in Buffalo.
Brown thinks that any encouragement that the President can
give the people of Buffalo that the Justice Department will
seriously consider the request of the school board will make
headlines in the newspapers. If there is any possibility
that such a statement is going to be made if the newspapers
could be told in advance they could banner it on Saturday
which would stimulate people to attend the President's rally
on Sunday. Kemp, of course, endorses Brown's suggestion.
wined Van interned when at , Dated
Now we can within only on
Const summ
w/o comer by city on
cont - NO boni for Federal
MEMORANDUM
THE WHITE HOUSE
INFORMATION
(REQUEST)
stand why
WASHINGTON
j
to defervence
October 29, 1976
AUSAN
MEMORANDUM FOR:
Jim Cannon
FROM:
Dick Parsons
D.
GERALD R. FORD LIBRARY
SUBJECT:
Buffalo School Desegregation Case
As I understand it, the facts in this case are as follows:
On April 30, 1976, the Federal District Court for the Western
District of New York held that the School Board of the City of
Buffalo and the Board of Regents of the State of New York had
\
unlawfully discriminated against minority students in the
Buffalo public school system. Subsequently, on July 9, 1976,
the Court ordered the defendants to submit a desegregation plan
in two parts: Part 1, to be implemented for the 1976 school
year, would require only limited student assignment; and Part 2,
which was to be submitted to the Court by October 14, 1976, would
require complete desegregation.
The State of New York, on behalf of the State Board of Regents,
has appealed the District Court's order on the limited grounds
3
that the Board of Regents was improperly joined as a defendant
in the case. The City of Buffalo, however, has not appealed the
order.
Last week, the City requested additional time in which to submit
its "Phase 2" plan. It has been given until January 5, 1977.
It appears, therefore, that there is no appeal on the basic
findings of the case in which the Federal government could join.
In- fact, I am advised by both Federal and State representatives
in Buffalo that reaction to the Court's order has been mild.
However, I am told that several disgruntled City Councilmen have
attempted to intervene in the case for the purpose of pursuing
an appeal.
If the President is asked about this situation, I think he should
simply indicate that we are following it closely (through the
Justice Department's Community Relations Service) and that he is
hopeful that the responsible elements of the community will work
with the Court to develop an effective plan which meets the
requirements of the Constitution.
Sugues
you
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S Schotle wh
is
An approximate vocial
in Bullalo
I
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beffaco
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ashus Dist To supply a
Ioorida
/
uty and plan at 23%
46 % of educat revollement
bubu the why A is block
retual awain Bd
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3 Mark we ch .
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Buch ch leter why -vide
[undated]
DATA ON PUBLIC ELEMENTARY AND SECONDARY SCHOOL SYSTEMS
PREFACE: All data provided are for the 1972-73 school year,
the last year in which the Office for Civil Rights
(OCR) conducted a so-called large survey encompassing
8,056 districts which represent approximately
46 per cent of the Nation's public school districts
but 72.5 per cent of the schools and 91.8 per cent of
the enrolled pupils. It is the OCR-collected survey
data which provide the figures for items 1-5 below.
Since there are no other available data on which to
base responses, items 1-5 below refer only to the
8,056 1972-73 OCR-surveyed districts.
1. Total number of operating public elementary and
secondary school systems, fall 1972
16,515
(Source: Education Directory 1972-73,
Public School Systems, NCES, 1973)
2. Total number of districts with an appreciable
percentage of minority students
1
3,441
3. Estimated total number of districts which have
gone through desegregation (number of districts
under Federal court order, State court order or
which have HEW-accepted plans)
1,305
a) Federal court order
678
b) State court order
20
c) HEW plan
707
4. Total number of districts with appreciable
percentage of minority students which have not
gone through desegregation
2,136
5. Total number of districts in which minority
students are assigned to racially segregated2
schools (i.e., likely to have to go through
desegregation)
approximately
600
1
Appreciable percentage is defined as 5 per cent or more
total minority enrollment, for purposes of this reprot.
2
Segregated is defined as a school with a minority
enrollment of more than 50 per cent.
FORD
NOTE TO THE FILE
Presidential Statements and Presidential Meetings
data on Busing are in two black notebooks in the
small storage room at the back of JMC's office.
jm
in FORD
[undated]
BUSING
Q.
Can you tell us more specifically what you are
considering? Is it really an alternative to
busing?
A.
I am hoping to do two things:
First, to limit the extent to which a court can
order busing. The limits would be
determined by the degree to which the
court found that official acts (rather
than other forces) contributed to the
segregation situation.
Second, where illegal segregation exists, I believe
that local communities are the proper
place to correct the problem. I want to
help them in these efforts, and I am con-
sidering several ways of doing SO. Local
solutions may, of course, involve some
busing, but I think such decisions should
not be made by the courts.
PORT LIBRAR is DERALD
Sent to Nessen
[undated]
BUSING
Q.
Mr. President, there has been a great deal of
attention in recent weeks to the issue of busing.
Your Administration was talking about legislation
to provide for an alternative to busing. Last
Saturday you indicated that you would shortly send
legislation to the Congress. What will the legis-
lation provide for us?
A.
Before I say anything about legislation, I would
like to place this extremely sensitive issue into
what I believe to be its proper context. First of
all, we must remember that this Nation has a funda-
mental commitment to achieving an integrated society
where an individual's race creates no barriers. I
wholeheartedly embrace that commitment. To me, it
means that we must eliminate illegal discrimination
and promote equal opportunity.
The Federal Government already plays a major role in
seeking these objectives. We spend large sums for
Civil Rights Enforcement. We also invest extensively
in education and training programs designed to improve
the capacities of underprivileged individuals to
acquire good jobs. Much more needs to be done, but
I think we should be proud of the significant progress
that has been made towards eliminating discrimination.
Now, with regard to segregated school systems, and
particularly with regard to busing, my objective is
to create better educational opportunities in a
manner consistent with the Nation's commitment to
justice and to the elimination of illegal segregation.
In my view, forced school busing, while done with
the best of intentions, has often disrupted the lives
and impeded the education of the children affected.
Therefore, I believe that ways must be found to mini-
mize forced busing while also remaining true to the
Nation's ideals and our educational goals. This is
FORD i LIBRARY GERALD
not an easy task, but it is my objective.
For a number of months we have been working within the
Administration on legislation and other means of mini-
mizing court-ordered busing. We now have draft legis-
lation which appears to be a positive step in the
course we are following. During the next few weeks,
I plan to meet personally with a wide range of people
outside the Administration to seek their views on
what we are considering. Following those meetings, I
plan to send a bill to the Congress.
[undated]
Answer to Busing Question:
The first question we must answer is, "What are we really
trying to do by busing?" All of us--white, black, every
American, in my opinion--want quality education.
Second, let me strongly emphasize that the Supreme Court,
in 1954, decided that separate but equal schools were not
constitutional. That is the law of the land. As far as
my Administration is concerned, the law of the land will
be upheld and we are upholding it.
Consequently, the Federal Court decided that busing is
one way to desegregate schools and perhaps improve
education at the same time. But there is always more
than one answer, and I have the responsibility to give
what I think is a better answer to the achievement of
quality education, which is what we all seek.
I believe that quality education can be enhanced by
better school facilities, lower pupil-teacher ratios,
the improvement of neighborhoods and possibly by other
alternatives.
Accordingly, I directed the Secretary of Health, Education
and Welfare, the Attorney General, and members of my staff
to develop better methods of achieving quality education
within an integrated environment for all children.
The development of these alternatives is going on now.
When these proposed alternatives have been thoroughly
prepared, I shall make them public.
to Bob sordwin
From Margita Whate
[irndated]
BUSING
Q: Boston, more than any other city in the nation, has seen
its people divided, its racial tensions increased, its
classrooms become centers of conflict, and its streets
become battlegrounds because of the forced busing of
thousands of its schoolchildren. There is growing
agreement among parents, politicans, sociologists and
educators that though desegregation of the schools. is
a desirable end, forced busing is an imperfect and
ineffective means to achieve it. You have added your
voice to the critics of busing by saying that you
oppose it and that there are better alternatives to
it. But you have nevery really spelled out, in specific
detail, what these alternatives are and what you propose
to do as President to bring them about.
Exactly what do you advocate to bring about integration
in the schools and reduce the racial tension in our
city-and what actions will you take to achieve those
goals?'
GERALD FORD LIBRARY
[undated]
Answer to Busing Question:
The first question we must answer is, "What are we really
trying to do by busing?" All of us--white, black, every
American, in my opinion--want quality education.
Second, let me strongly emphasize that the Supreme Court,
in 1954, decided that separate but equal schools were not
constitutional. That is the law of the land. As far as
my Administration is concerned, the law of the land will
be upheld and we are upholding it.
Subsequently,
Consequently,/the Federal Court decided that busing is
one way to desegregate schools and perhaps improve
education at the same time. But there is always more
than one answer, and I have the responsibility to give
what I think is a better answer to the achievement of
quality education, which is what we all seek.
I believe that quality education can be enhanced by
better school facilities, lower pupil-teacher ratios,
the improvement of neighborhoods and possibly by other
alternatives.
Accordingly, I directed the Secretary of Health, Education
and Welfare, the Attorney General, and members of my staff
to develop better methods of achieving quality education
within an integrated environment for all children.
The development of these alternatives is going on now.
When these proposed alternatives have been thoroughly
prepared, I shall make them public
[undated]
STAGES OF THE INDIANAPOLIS, INDIANA CASE
1. In June 1967 a complaint alleging discrimination
in Indianapolis was forwarded to the Civil Rights Division
by the United States Commission on Civil Rights. The in-
vestigative stage of this case lasted until April 1968.
2. On May 8, 1968 Department attorneys had a meeting
with the local school officials, their staff and their
attorneys. It was agreed that the Department would forward
to the school board a list of the steps which the school
board must take to remedy the deficiencies that our investi-
gation had uncovered; it was also agreed that the board
would meet again on May 14 and decide whether it was prepared
to take voluntary action. On May 21 the board informed the
Department that it would not take voluntary action.
3. On May 31, 1968 suit was filed by the United
States against the local school officials seeking to enjoin
them from discrimination on the basis of race in the opera-
tion of their schools and from failing to adopt and implement
a plan for the elimination of the discriminatory practices.
4. On July 1, 1968 the United States filed a motion
for preliminary injunction. Based on a stipulation that
racial factors had been considered in the assignment of
teachers and staff the Court on August 12 entered an order
enjoining the board from assigning faculty members on a racial
basis for the 1968-69 school year.
FORD LIBRA & 07%
- 2 -
5. Discovery on the student issues continued and the
trial was held (after first being set for January 20, 1969)
on July 12-21, 1971. On August 18, 1971, the district court
handed down its decision, ruling that the defendant board
had discriminated in student assignments. The court ordered
interim relief for the 1971-72 school year. The court also
ordered the school board to take whatever steps might be
necessary to convert to a unitary system. The district court
also found that the consolidation of the city of Indianapolis
and the surrounding county in 1969 presented a situation
calling for inter-district relief and ordered the United
States to join as additional parties defendant the municipal
corporations and school corporations which would have an
interest in the Court's intended consideration of a metro-
politan remedy.
6. On September 7, 1971, the United States moved to
add the defendants as required by the district court. There-
after, numerous other interested parties were allowed to inter-
vene on both sides of the case.
7. During the next year there was considerable pro-
cedural litigation involving the rights of all the intervening
and added parties, including applications to the Court of
Appeals for writs of prohibition or mandamus to vacate the
joinder and intervention orders of the district court, to
compel the convening of a three-judge district court, and to
compel the recusation of the district judge. All these
lateral attacks on the district court's orders were unsuccessful.
- 3 -
8. On September 28, 1972, the district judge for the
first time ordered the development and submission of compre-
hensive plans for the desegregation of Indianapolis. In
response the Indianapolis board on February 8, 1973 submitted
a plan called the "Stabilization Plan" which the district
court rejected on June 11, 1973. (Earlier, in 1969, a team
from HEW had prepared some interim recommendations for de-
segregation of the district which had been rejected by the
board that year. In addition, a federally funded study by
two specialists employed by the school board resulted in a
series of desegregation recommendations which were also
rejected by the board shortly before trial in 1971.)
9. The remedy phase was tried before the district
court from June 12 through July 6, 1973. On July 20 the
court entered its decision concluding that intra-district
remedies did not promise a reasonable degree of permanence,
that the State and its officials and agencies had promoted
segregation and inhibited desegregation within the district
and that a remedy affecting 19 surrounding school corpora-
tions in and adjacent to Marion County was called for. The
court in its order provided first that the General Assembly
should get the first chance to select a plan but if it
failed to do so the court would promulgate a plan. The court
ordered interim (intra-district) relief in the form of some
new student assignments which involved some new busing for
the 1973-74 school year.
- 4 -
10. None of the parties to the case were satisfied with
the Judge's order and there followed a series of appeals and
cross-appeals. They argued on February 20, 1974 and the
Seventh Circuit rendered its decision on August 21 of that
year. Various aspects of the district court order were
upheld but the circuit court remanded the inter-district
relief portion of the case for reconsideration in light of the
Supreme Court's then recent decision in the Detroit case
which limited inter-district relief to those situations in
which an inter-district violation had been found. The
circuit court also ordered the school corporations beyond
the Marion County line to be dropped from consideration as
participants in the relief.
11. Additional district court hearings were held in
March 1975 and there followed on August 1, 1975 a further
order by the district judge requiring the defendant Indiana-
polis district to transfer a number of black students to the
defendant outlying school district and enjoining the defendant
housing authority from constructing public housing projects
in the old city of Indianapolis. (The court had found
racially discriminatory site selection policies on the part
of the housing authority.) This order also required the
Indianapolis board to complete integration within the old
city of Indianapolis.
12. Most of the defendants took an appeal from the
latest district court order. It was argued before the Seventh
Circuit in November 1975 and has not been decided yet.
R.FORD
[Undated]
STAGES OF THE OMAHA, NEBRASKA CASE
1. The first complaint concerning discrimination in
the Omaha public schools was forwarded to the Civil Rights
Division from HEW in April 1971. During the months that
followed HEW continued to handle the case and to receive
additional complaints from citizens in Omaha. During this
period of time the responsibility for enforcement of the
school desegregation requirements of federal law was with
HEW. In late 1971 HEW and Department of Justice officials
met and a decision was made that the Department of Justice
would take over enforcement responsibilities in Omaha rather
than have HEW seek compliance through fund termination under
Title VI.
2. After some initial discussions with the local
school board officials the Civil Rights Division investiga-
tion began in April 1972. The process of gathering informa-
tion about the school system continued throughout 1972 and
into 1973.
3. On June 7, 1973 the Civil Rights Division wrote
to the Omaha Board of Education noting the results of our
investigation and requesting that the school board undertake
a comprehensive review of its operations in order to arrive
at voluntary steps necessary to come into compliance with
the law. The school board attorney replied to this letter
on July 20, 1973.
FORD
- 2 -
4. On August 10, 1973, after determining that the
school board response was inadequate the Department filed
suit seeking to enjoin the defendant school board from
discriminating on the basis of race in the operation of its
schools. A motion for preliminary injunction was also filed
that day requesting specific relief with respect to the
scheduled opening of a new middle school that fall. The
motion for preliminary injunction was denied by the district
court on August 31.
5. On November 27, 1973, the district court granted
a motion allowing the intervention in the suit of a group
of black students and parents.
6. Pre-trial discovery continued and on March 4
through March 20, 1974 trial was held. The matter was taken
under advisement by the district court on June 5, 1974 after
all post-trial briefs had been filed.
7. On October 15, 1974 the district court ruled
against the United States and the private intervenors and
entered an order dismissing the complaint.
8. The United States and the intervenors appealed
and on June 12, 1975 the Court of Appeals for the Eighth
Circuit reversed and remanded the case to the district court
with instructions to "take those steps necessary to bring
about a thoroughly integrated school system" in accordance
with certain guidelines and timetables. These included
certain preliminary steps at desegregation for the 1975-76
FORD
- 3 -
school year and the implementation of a comprehensive de-
segregation plan with the beginning of the 1976-77 school
year.
9. After the Court of Appeals decision the school
board unsuccessfully sought review by the Supreme Court.
In the meantime, the district court on remand ordered the
school board to consult with a newly appointed biracial
committee and the parties in the development of a plan.
10. The school board submitted its plan to the
district court and the parties on December 31, 1975.
Thereafter, the United States and the intervenors suggested
some modifications of what was in most respects a legally
sufficient plan and the district court gave its final
approval on May 24, 1976. On the same day, the intervenors
filed a notice of appeal and a request for expedited considera-
tion by the court of appeals. Their objections to the court-
approved plan pertain to the exclusion of first graders from
mandatory reassignments, the conversion of two former black
schools to primary grade centers, and the allocation of the
burdens of desegregation (even though over 60 percent of
those reassigned are white).
11. In a related case, filed in March 1976, a group
of white "taxpayers" filed a lawsuit against the Omaha Board
of Education in a state court alleging that the requirement
by the Eighth Circuit Court of Appeals requiring the school
district to pay for any necessary transportation under the
final desegregation plan, constitutes a "judicially imposed"
- 4 -
tax and is violative of both the United States and State of
Nebraska Constitutions. The defendant school district removed
the case to the United States district court and on April 2,
1976, the district court denied the plaintiffs' motion for a
temporary restraining order and on April 22, 1976, the United
States was added as a party defendant.
12. It is expected that the defendant school board
will appeal from the district court's remedial order.
[Undated]
STAGES OF THE KANSAS CITY, KANSAS CASE
1. In September 1969 the Civil Rights Division asked
the FBI to conduct an investigation of the Kansas City schools.
This was predicated on a complaint received from a parent
alleging that her children were being deprived of equal
educational opportunities because of race. Thereafter, the
Division obtained a copy of HEW's preliminary compliance
review of the Kansas City public schools and, in addition to
obtaining information through the FBI, entered into an exchange
of communications with the school board to obtain information
on a variety of matters such as attendance zones, bus route
maps, student transfer records, teacher assignments, etc.
This investigative stage lasted until June 1972 when an
internal recommendation in the Civil Rights Division was made
to bring suit against Kansas City alleging discrimination in
faculty assignment. In the meantime, the Division's investi-
gation of student assignments continued.
2. In October 1972 Civil Rights Division officials
met with Kansas City school officials and their lawyer as
part of a continuing effort to persuade the district to make
changes on a voluntary basis. There followed a long exchange
of correspondence between the Division and the district on
the issue of faculty desegregation.
3. On May 18,1973, suit was filed by the Department
charging the school district with unlawful discrimination in
the assignment of faculty and staff. Pre-trial discovery on
the teacher issue started in July 1973 and continued through-
out the year.
FORD LIBRARY
- 2 -
4. On February 11, 1974, the Civil Rights Division
recommended to the Attorney General that the complaint be
amended to include an allegation of discrimination in student
assignment and a motion seeking to file a supplemental com-
plaint was filed on February 27, 1974.
5. After the filing of the supplemental complaint
intensive discovery and pre-trial motions were had. Trial
in the district court on the issue of the school district's
liability to correct student and faculty assignment dis-
crimination was begun on November 4, 1975 and continued for
26 days of trial. Both parties filed their post-trial briefs
on May 14, 1976 and the Court has scheduled oral argument for
June 4, 1976.
N. FORD
[Uindated]
DRAFT
EXECUTIVE ORDER
NATIONAL COMMUNITY AND EDUCATION COMMISSION
Throughout the history of our Nation, the education
of our children, especially at the elementary and secondary
level, has been a community endeavor. The concept of public
education began in the community and continuous support for
public schools has been provided by the community. Although
the States, and to some extent the Federal government, have
been providing increasing financial assistance for education,
it has become clear that the solution of many of the most
pressing problems facing our schools lies within the
community which supports those schools.
This fact has particular relevance to the problem of
school desegregation. Over the past two decades, communities
have been under pressure from the courts, the Department of
Health, Education, and Welfare, and in some cases the States,
to institute changes in the assignment of students to schools.
Too often this has been accomplished without the involvement
of the community or with its involvement only after confron-
tions have occurred and community positions have been
established.
FORD LIBRARY & GERALD
2
The problems that have arisen in the process of school
integration have not been due to the inadequacy of law or
the lack of appropriate resources. Rather, they can be
attributed to the fact that the burden of initiating and
enforcing school desegregation has been borne by the courts
and the Federal government without the benefit of those
forces from within the community that are uniquely able to
bring about necessary change in an orderly and peaceful
manner.
It is therefore the purpose of this executive order to
provide a means to activate and energize effective local
leadership in the desegregation process at an early stage in
order to reduce the incidence and severity of the trauma
that would otherwise accompany that process, and to provide
a national resource that will be available to assist
communities in anticipating and resolving difficulties
encountered prior to and during desegregation.
NOW, THEREFORE, by virtue of the authority vested in
me as President of the United States of America, it is hereby
ordered as follows:
FORD LIBRARY is
3
Section 1. Establishment of the Commission. (a) There
is hereby established a National Community and Education
Commission (hereinafter referred to as the "Commission"),
the purpose of which shall be to consult with, provide
technical assistance to, and informally mediate between,
community groups and State and local governmental organizations
(including educational agencies) in order to anticipate
and resolve problems and conflicts relating to the
desegregation of schools.
(b) Composition of the Commission. The Commission
shall be composed of nine members who shall be appointed
by the President from among individuals who are nationally
recognized and respected in business, education, government
and other fields and whose experience, reputation, and
qualities of leadership render them uniquely capable of
carrying out the purposes of the Commission. No person
who is otherwise employed by the United States shall be
appointed to serve on the Commission. No more than five
of the members of the Commission at any one time shall
be members of the same political party.
4
(c) Terms of members. The term of office of each
member of the Commission shall be three years, except that
of the members first appointed to the Commission three shall
be appointed for a term of one year and three shall be
appointed for a term of two years. Any member appointed
to fill an unexpired term on the Commission shall serve
for the remainder of the term for which his predecessor
was appointed.
(d) Chairman; quorum. The Chairman of the Commission
shall be designated by the President. Five members of the
Commission shall comprise a quorum.
(e) Compensation of members. Each member of the
Commission shall be compensated in an amount equal to that paid
at level IV of the Federal Executive Salary Schedule, pursuant
to section 5313 of title 5, United States Code, prorated on
a daily basis for each day spent on the work of the Commission,
including travel time. In addition, each member shall be
allowed travel expenses, including per diem in lieu of
subsistence, as authorized by section 5703 of title 5,
United States Code, for persons employed intermittently
in the Government Service.
5
(f) Executive Director; staff. The Commission shall
have an Executive Director, designated by the Chairman
with the approval of a majority of the members of the
Commission, who shall assist the Chairman and the Commission
in the performance of their functions as they may direct.
The Executive Director shall be appointed without regard
to the provisions of title 5, United States Code, governing
appointments in the competitive service. The Commission is
also authorized to appoint, without regard to the provisions
of title 5, United States Code, governing appointments in the
competitive service, or otherwise obtain the services of,
such professional, technical, and clerical personnel,
including consultants, as may be necessary to enable the
Commission to carry out its functions. Such personnel,
including the Executive Director, shall be compensated
at rates not to exceed that specified at the time such.
service is performed for grade GS-18 in section 5332 of
that title.
FORD LIBRARY i 07V83
6
Sec. 2. Functions of the Commission. The functions of
the Commission shall include, but shall not be limited to:
(1) Consulting with leaders in the community and local
groups in determining means by which such leaders and groups
can, through early involvement in the development of, and
preparation for, school desegregation plans, contribute
to the desegregation process in such a way as to avoid
conflicts and the invocation of judicial procedures.
(2) Encouraging the formation of broadly based local
community organizations to develop a program designed to
encourage comprehensive community planning for the desegre-
gation of schools.
(3) Providing advice and technical assistance to
communities in preparing for and carrying out comprehensive
plans to desegregate the schools, involving the broadest
possible range of community interests and organizations;
(4) Consulting with the Community Relations Service
of the Department of Justice (established under title X
of the Civil Rights Act of 1964), the Office for Civil
Rights in the Department of Health, Education, and Welfare,
the National Institute of Education, the U.S. Office of Education,
7
General Assistance Centers (funded under title IV of the
Civil Rights Act of 1964), the United States Civil Rights
Commission, and State and local human relations agencies
to determine how those organizations can contribute to the
resolution of problems arising in the desegregation of
schools within a community; and
(5) Providing informal mediation services among
individuals, groups, and agencies within a community in
order to resolve conflicts, reduce tensions, and develop
acceptable means of desegregating schools without resort
to administrative and judicial processes.
Sec. 3. Limitations on activities of the Commission.
It shall not be the function of the Commission--
(1) to prepare desegregation plans;
(2) to provide mediation services under the order
of a court of the United States or of a State; or
(3) to investigate or take any action with respect
to allegations of violations of law.
Sec. 4. Cooperation by other departments and agencies.
(a) All executive departments and agencies of the United
States are authorized to cooperate with the Commission
and furnish to it such information, personnel and other
8
assistance as may be appropriate to assist the Commission
in the performance of its functions and as may be authorized
by law.
(b) In administering programs designed to assist
local educational agencies and communities in planning for
and carrying out the desegregation of schools, the Secretary
of Health, Education, and Welfare and the heads of agencies
within that Department shall administer such programs,
to the extent permitted by law, in a manner that will
further the activities of the Commission.
Sec. 5. Expenses of the Council. Expenses of the
Commission shall be paid from such appropriations to the Depart-
ment of Health, Education, and Welfare as may be available
therefor.
Sec. 6. Confidentiality. The activities of the members
and employees of the Commission in carrying out the purposes of
this executive order may be conducted in confidence and
without publicity, and the Commission shall, to the extent
provided by law, hold confidential any information acquired
in the regular performance of its duties if such information
was provided to the Commission upon the understanding that
it would be so held.
FORD is LIBRARY QERALD
10
SUCESSFUL Commonity EFFORTS
men
The merit of this approach is reflected by studies of school
desegregation plans which indicate that there are areas which
have desegregated their schools with relatively few disorders.
The prerequisite to this achievement is cooperative community
involvement, usually spearheaded by committees that include a
wide range of spokesmen. Two For examples
Since 1973, school desegregation in Charlotte, North Carolina,
has proceeded with minimal difficulty. This is undoubtedly
the result of the combined efforts of several groups. One
is the Citizens Advisory Group a coalition of blacks and
whites that has worked with the school board in equitably
distributing the burdens of change throughout the school system.
School board meetings are held every two weeks and are broadcast
live by the local public television station; substantial home
audiences reflect the intense local interest and involvement
in school board deliberations.
A vigorous effort to involve students and parents in every
stage of the desegregation process has been consistently
maintained in Charlotte. A Student Coordinating Council
conducts "rap sessions" with student bodies and advises
11
school administrations on preventing and handling violence.
Another, more informal student group has sought to promote the
benefits of positive race relations thoughout junior and senior
high schools.
Active parental participation has also been strong. Especially
during transition periods in newly desegregated schools, parents
helped in tutoring slow learners and developing relationships
with children that dissolved racial barriers. Parents were
involved in curriculum planning so that better understanding
could be gained as to what their children were being taught.
A book was published by parents listing those who could be
called on for advice in various areas of education and who
would come into the school and give "talks" in their particular
field of interest.
Tampa, Florida implemented its desegregation plan with the
assistance of a task force consisting of 15 school system
staff members and five lay people. Technical advice was
requested from the Desegregation Consulting Center at the
University of Miami. In addition, a community-wide organiza-
tion was established that included 156 citizens, ranging from
business leaders to students. This group was responsible for
making final recommendations on desegration plans to the school
board.
The task force, working in open sessions before the press and
the public, adopted a set of operating principles and debated
[undated]
ESTABLISHMENT OF THE NATIONAL COMMUNITY AND EDUCATION COMMISSION
A MAJOR INITIATIVE IN SCHOOL DESEGREGATION
Summary Description
In an effort to encourage and facilitate constructive, comprehensive
planning for school desegregation at the local level, it is proposed
that the National Community and Education Commission be established by
Executive Order. The Commission would be a Presidentially-appointed,
bipartisan group of distinguished citizens drawn from business and
other professional circles. Its charge would be to assist local
communities in carrying out desegregation planning activities designed
to build lines of communication, avert disorder, and encourage con-
structive interracial classroom environments through the example of
constructive interracial community environments.
Specific Function
The Commission's chief responsibility would be to advise local com-
munity leaders at the earliest stages of desegregation planning.
Assistance would be initiated at the request of the affected community,
and at that point a determination would be made by one or more Com-
mission members as to what course of Commission activity offered the
greatest promise of success within the particular community. In general,
however, the orientation of the Commission would be toward working
quietly with a broad spectrum of local leaders to identify problems
before they develop and to devise solutions which could be carried out
locally. While working within a community, the Commission would function
primarily in a supportive and advisory role.
In the course of its consultations with the community and the school
district, one of the Commission's chief functions would be to inform
local leaders of additional sources of desegregation assistance (Federal,
State, local and private) and encourage that these sources be investi-
gated. Such sources include direct funding through the Emergency School
Aid Act; technical assistance through OE's General Assistance Centers;
OE's ten regional offices, and the Justice Department's Community
Relations Service; formal mediation service through the Federal
Mediation and Conciliation Service; and other forms of aid through
the U.S. Commission on Civil Rights, State human relations agencies,
and related private agencies.
Although the Commission's activities will overlap to some extent with
those of the organizations mentioned above, the Commission should be
-2-
able to minimize unnecessary duplication through careful liaison
with these other resources. It will be particularly important to
work out non-duplicative roles with the Community Relations Service
(CRS) since the function of CRS -- helping communities defuse tensions
and conflicts arising from inequities or discrimination based on race,
color, or national origin --- is notably similar to that of the pro-
posed Commission. The CRS focuses less of its attention on pre-crisis
intervention now than it did prior to FY 1974. Budget cuts that year
effectively removed CRS from its earlier pre-crisis role, even though
some individuals have held that the nature of the CRS function and
expertise makes the agency particularly well suited to pre-crisis
assistance. Thus, although CRS may not be currently active in some
of the Commission's more important roles, its staff probably will
have valuable insights and experiences to share with the Commission.
In keeping with its general functions already described, the Commis-
sion's role would not be to serve as a court-appointed intermediary
between parties in a legal suit related to desegregation. Mediation
would be a proper role for the Commission only in instances where it
was conducted informally and with the voluntary participation of the
major elements of the community. Similarly, the Commission would not
be empowered to act for any State or Federal agency in an enforcement
or compliance capacity. Moreover, it would not be expected to draw
up desegregation-related student assignment plans at the request of
a State or Federal agency.
Federal Incentives for Comprehensive Community Planning
The Commission is intended primarily to provide help to school districts
which have not yet adopted or been issued a desegregation plan (although
districts at other points in the desegregation process certainly would
not be precluded from receiving assistance from the Commission). In
order to provide support for districts which are conducting compre-
hensive, community-based planning for desegregation, it is proposed
that a specified amount of funds in the Emergency School Aid Act (ESAA)
discretionary account be set aside to support local planning acti-
vities, including those initiated with Commission involvement.
The ESAA discretionary account (Section 708 (a)) is the only part of
the ESAA under which a school district without an eligible desegregation
plan may receive funds. Therefore, it would be possible to stipulate by
regulation that a community which showed proof of effort to conduct
community-wide desegregation planning could receive funding to conduct
such planning and other activities authorized under ESAA. The intention
would be that this planning would involve all major sectors of the
community, including business and housing representatives.
FORD
RALD
-3-
Structure
The Commission would be made up of nine members who would be appointed
by the President for three-year terms of office. To provide continuity
within the Commission, terms of office for individual members would be
staggered at one-year intervals. The Commission chairman would be
selected by the President, with the first chairman appointed for a
full three-year term. Commission members would be expected to main-
tain their regular occupations but would be compensated at EL IV for
the days they work on Commission activities. To ensure bipartisan
representation, restrictions would be placed on the number of Commis-
sion members permitted from each political party. The Commission would
have the authority to hire staff on an excepted service basis and to
retain consultants as needed for specific projects.
[Undated]
DATA FROM CHARLES ROLL
(This is as close and as late-of-date as the data comes
to your two questions)
October 18-21, 1974
Question: I favor (I oppose) busing school children
to achieve better racial balance in the schools.
35% favor
65% oppose
(this was answered by "secret ballot"; i.e. participants
marked answer themselves rather than replying verbally
to question)
September 12-15, 1975
Which, if any, of these ways do you think is the best way
to achieve integration of public schools in terms of
different economic and national groups?
Create housing
18%
Change boundaries
31%
Busing
4%
Something else
19%
Oppose integration 17% (this figure was no higher in the South
than in any other part of country)
No opinion
11%
September 12-15, 1975
Would you yourself have any objection to sending your
children to a school where a few of the children are black?
15% Southern white parents object
3% Northern white parents object
--where half the children are black?
38% Sothern white parents object
24% Northern white parents object
--where more than half are black?
61% Southern white parents object
47T Northern white parents object
Observation of Charles Roll on your comment that
this is a highly "emotional" issue:
He said he once wrote that busing involves all the
sacred COWS of America:
children, education, the individual's dream
(he moved away from the black city only to
be bused back in--thus his suburban
dream is exploded)
FORD
CRISTY, ITIS
If Charles Roll of the Gallup Poll calls back, we are
to take down the data that he has for Mr. Cannon.
Mr. Cannon had asked him for data on responses to two
busing questions:
1. Are you in favor of equal educational opportunity
for all Americans?
not That philosophical
2. How do you feel about busing your children?
FORD LIBRARY & GERALD
undated
BROWN v. BOARD OF EDUCATION. Busing
483
Syllabus.
BROWN ET AL. v. BOARD OF EDUCATION
OF TOPEKA ET AL.
NO. 1. APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS.
Argued December 9, 1952.-Reargued December 8, 1953.-
Decided May 17, 1954.
Segregation of white and Negro children in the public schools of a
State solely on the basis of race, pursuant to state laws permitting
or requiring such segregation, denies to Negro children the equal
protection of the laws guaranteed by the Fourteenth Amendment-
even though the physical facilities and other "tangible" factors of
white and Negro schools may be equal Pp. 486-496.
(a) The history of the Fourteenth Amendment is inconclusive
as to its intended effect on public education. Pp. 489-490.
(b) The question presented in these cases must be determined,
not on the basis of conditions existing when the Fourteenth Amend-
ment was adopted, but in the light of the full development of
public education and its present place in American life throughout
the Nation. Pp. 492-493.
(c) Where a State has undertaken to provide an opportunity
for an education in its public schools, such an opportunity is a
right which must be made available to all on equal terms. P. 493.
(d) Segregation of children in publie schools solely on the
basis of race deprives children of the minority group of equal
educational opportunities, even though the physical facilities and
other "tangible" factors may be equal. Pp. 493-494.
(e) The "separate but equal" doctrine adopted in Plessy V.
Ferguson, 163 U.S. 537, has no place in the field of public education.
P. 495.
*Together with No. 2, Briggs et al. V. Elliott et al., on appeal from
the United States District Court for the Eastern District of South
Carolina, argued December 9-10, 1952, reargued December 7-8,
1953; No. 4, Davis et al. V. County School Board of Prince Edward
County, Virginia, et al., on appeal from the United States District
Court for the Eastern District of Virginia, argued December 10, 1952,
FORD
i
reargued December 7-8, 1953; and No. 10, Gebhart et al. V. Belton
et al., on certiorari to the Supreme Court of Delaware, argued De-
cember 11, 1952, reargued December 9, 1953.
GERALD
484
OCTOBER TERM, 1953.
Counsel for Parties.
347 U.S.
(f) The cases are restored to the docket for further argument
on specified questions relating to the forms of the decrees. Pp.
495-496.
Robert L. Carter argued the cause for appellants in
No. 1 on the original argument and on the reargument.
Thurgood Marshall argued the cause for appellants in
No. 2 on the original argument and Spottswood W. Robin-
son, III, for appellants in No. 4 on the original argument,
and both argued the causes for appellants in Nos. 2 and 4
on the reargument. Louis L. Redding and Jack Green-
berg argued the cause for respondents in No. 10 on the
original argument and Jack Greenberg and Thurgood
Marshall on the reargument.
On the briefs were Robert L. Carter, Thurgood Mar-
shall, Spottswood W. Robinson, III, Louis L. Redding,
Jack Greenberg, George E. C. Hayes, William R. Ming,
Jr., Constance Baker Motley, James M. Nabrit, Jr.,
Charles S. Scott, Frank D. Reeves, Harold R. Boulware
and Oliver W. Hill for appellants in Nos. 1, 2 and 4 and
respondents in No. 10; George M. Johnson for appellants
in Nos. 1, 2 and 4; and Loren Miller for appellants in
Nos. 2 and 4. Arthur D. Shores and A. T. Walden were
on the Statement as to Jurisdiction and a brief opposing
a Motion to Dismiss or Affirm in No. 2.
Paul E. Wilson, Assistant Attorney General of Kansas,
argued the cause for appellees in No. 1 on the original
argument and on the reargument. With him on the
briefs was Harold R. Fatzer, Attorney General.
John W. Davis argued the cause for appellees in No. 2
on the original argument and for appellees in Nos. 2 and
4 on the reargument. With him on the briefs in No. 2
were T. C. Callison, Attorney General of South Carolina,
Robert McC. Figg, Jr., S. E. Rogers, William R. Meagher
and Taggart Whipple.
BROWN v. BOARD OF EDUCATION.
485
483
Counsel for Parties.
J. Lindsay Almond, Jr., Attorney General of Virginia,
and T. Justin Moore argued the cause for appellees in
No. 4 on the original argument and for appellees in Nos. 2
and 4 on the reargument. On the briefs in No. 4 were
J. Lindsay Almond, Jr., Attorney General, and Henry T.
Wickham, Special Assistant Attorney General, for the
State of Virginia, and T. Justin Moore, Archibald G.
Robertson, John W. Riely and T. Justin Moore, Jr. for
the Prince Edward County School Authorities. appellees.
H. Albert Young, Attorney General of Delaware,
argued the cause for petitioners in No. 10 on the original
argument and on the reargument. With him on the
briefs was Louis J. Finger, Special Deputy Attorney
General.
By special leave of Court, Assistant Attorney General
Rankin argued the cause for the United States on the
reargument, as amicus curiae, urging reversal in Nos. 1, 2
and 4 and affirmance in No. 10. With him on the brief
were Attorney General Brownell, Philip Elman, Leon
Ulman, William J. Lamont and M. Magdelena Schoch.
James P. McGranery, then Attorney General, and Philip
Elman filed a brief for the United States on the original
argument, as amicus curiae, urging reversal in Nos. 1, 2
and 4 and affirmance in No. 10.
Briefs of amici curiae supporting appellants in No. 1
were filed by Shad Polier, Will Maslow and Joseph B.
Robison for the American Jewish Congress; by Edwin
J. Lukas, Arnold Forster, Arthur Garfield Hays, Frank
E. Karelsen, Leonard Haas, Saburo Kido and Theodore
Leskes for the American Civil Liberties Union et al.; and
by John Ligtenberg and Selma M. Borchardt for the
American Federation of Teachers. Briefs of amici curiae
supporting appellants in No. 1 and respondents in No. 10
were filed by Arthur J. Goldberg and Thomas E. Harris
486
OCTOBER TERM, 1953.
Opinion of the Court.
347 U.S.
for the Congress of Industrial Organizations and by
Phineas Indritz for the American Veterans Committee,
Inc.
MR. CHIEF JUSTICE WARREN delivered the opinion of
the Court.
These cases come to us from the States of Kansas,
South Carolina, Virginia, and Delaware. They are pre-
mised on different facts and different local conditions,
but a common legal question justifies their consideration
together in this consolidated opinion.¹
1 In the Kansas case, Brown V. Board of Education, the plaintiffs
are Negro children of elementary school age residing in Topeka.
They brought this action in the United States District Court for the
District of Kansas to enjoin enforcement of a Kansas statute which
permits, but does not require, cities of more than 15,000 population
to maintain separate school facilities for Negro and white students.
Kan. Gen. Stat. § 72-1724 (1949). Pursuant to that authority, the
Topeka Board of Education elected to establish segregated elementary
schools. Other public schools in the community, however, are oper-
ated on a nonsegregated basis. The three-judge District Court, con-
vened under 28 U. S. C. §§ 2281 and 2284, found that segregation
in public education has a detrimental effect upon Negro children,
but denied relief on the ground that the Negro and white schools
were substantially equal with respect to buildings, transportation,
curricula, and educational qualifications of teachers. 98 F. Supp. 797.
The case is here on direct appeal under 28 U.S. C. § 1253.
In the South Carolina case, Briggs V. Elliott, the plaintiffs are Negro
children of both elementary and high school age residing in Clarendon
County. They brought this action in the United States District
Court for the Eastern District of South Carolina to enjoin enforce-
ment of provisions in the state constitution and statutory code which
require the segregation of Negroes and whites in public schools.
S. C. Const., Art. XI, § 7; S. C. Code § 5377 (1942). The three-
judge District Court, convened under 28 U.S. C. §§ 2281 and 2284,
denied the requested relief. The court found that the Negro schools
were inferior to the white schools and ordered the defendants to begin
immediately to equalize the facilities. But the court sustained the
validity of the contested provisions and denied the plaintiffs admis-
BROWN v. BOARD OF EDUCATION.
487
483
Opinion of the Court.
In each of the cases, minors of the Negro race, through
their legal representatives, seek the aid of the courts in
obtaining admission to the public schools of their com-
munity on a nonsegregated basis. In each instance,
sion to the white schools during the equalization program. 98 F.
Supp. 529. This Court vacated the District Court's judgment and
remanded the case for the purpose of obtaining the court's views
on a report filed by the defendants concerning the progress made in
the equalization program. 342 U. S. 350. On remand, the District
Court found that substantial equality had been achieved except for
buildings and that the defendants were proceeding to rectify this
inequality as well. 103 F. Supp. 920. The case is again here on
direct appeal under 28 U. S. C. § 1253.
In the Virginia case, Davis V. County School Board, the plaintiffs
are Negro children of high school age residing in Prince Edward
County. They brought this action in the United States District
Court for the Eastern District of Virginia to enjoin enforcement of
provisions in the state constitution and statutory code which require
the segregation of Negroes and whites in public schools. Va. Const.,
§ 140; Va. Code § 22-221 (1950). The three-judge District Court,
convened under 28 U. S. C. §§ 2281 and 2284, denied the requested
relief. The court found the Negro school inferior in physical
plant, curricula, and transportation, and ordered the defendants
forthwith to provide substantially equal curricula and transportation
and to "proceed with all reasonable diligence and dispatch to remove"
the inequality in physical plant. But, as in the South Carolina case,
the court sustained the validity of the contested provisions and denied
the plaintiffs admission to the white schools during the equalization
program. 103 F. Supp. 337. The case is here on direct appeal
under 28 U. S. C. § 1253.
In the Delaware case, Gebhart V. Belton, the plaintiffs are Negro
children of both elementary and high school age residing in New
Castle County. They brought this action in the Delaware Court
of Chancery to enjoin enforcement of provisions in the state consti-
tution and statutory code which require the segregation of Negroes
and whites in public schools. Del. Const., Art. X, § 2; Del. Rev.
Code § 2631 (1935). The Chancellor gave judgment for the plain-
tiffs and ordered their immediate admission to schools previously
attended only by white children, on the ground that the Negro schools
were inferior with respect to teacher training, pupil-teacher ratio,
extracurricular activities, physical plant, and time and distance in-
288037 0-54-36
488
OCTOBER TERM, 1953.
Opinion of the Court.
347 U.S.
they had been denied admission to schools attended by
white children under laws requiring or permitting segre-
gation according to race. This segregation was alleged to
deprive the plaintiffs of the equal protection of the laws
under the Fourteenth Amendment. In each of the cases
other than the Delaware case, a three-judge federal dis-
trict court denied relief to the plaintiffs on the so-called
"separate but equal" doctrine announced by this Court
in Plessy V. Ferguson, 163 U. S. 537. Under that doctrine,
equality of treatment is accorded when the races are
provided substantially equal facilities, even though these
facilities be separate. In the Delaware case, the Supreme
Court of Delaware adhered to that doctrine, but ordered
that the plaintiffs be admitted to the white schools
because of their superiority to the Negro schools.
The plaintiffs contend that segregated public schools
are not "equal" and cannot be made "equal," and that
hence they are deprived of the equal protection of the
laws. Because of the obvious importance of the question
presented, the Court took jurisdiction.2 Argument was
heard in the 1952 Term, and reargument was heard this
Term on certain questions propounded by the Court.3
volved in travel. 87 A. 2d 862. The Chancellor also found that seg-
regation itself results in an inferior education for Negro children (see
note 10, infra), but did not rest his decision on that ground. Id., at
865. The Chancellor's decree was affirmed by the Supreme Court of
Delaware, which intimated, however, that the defendants might be
able to obtain a modification of the decree after equalization of the
Negro and white schools had been accomplished. 91 A. 2d 137, 152.
The defendants, contending only that the Delaware courts had erred
in ordering the immediate admission of the Negro plaintiffs to the
white schools, applied to this Court for certiorari. The writ was
granted, 344 U. S. 891. The plaintiffs, who were successful below,
did not submit a cross-petition.
2 344 U. S. 1, 141, 891.
3 345 U. S. 972. The Attorney General of the United States par-
ticipated both Terms as amicus curiae.
BROWN v. BOARD OF EDUCATION.
489
483
Opinion of the Court.
Reargument was largely devoted to the circumstances
surrounding the adoption of the Fourteenth Amendment
in 1868. It covered exhaustively consideration of the
Amendment in Congress, ratification by the states, then
existing practices in racial segregation, and the views of
proponents and opponents of the Amendment. This
discussion and our own investigation convince us that,
although these sources cast some light, it is not enough
to resolve the problem with which we are faced. At best,
they are inconclusive. The most avid proponents of the
post-War Amendments undoubtedly intended them to
remove all legal distinctions among "all persons born
or naturalized in the United States." Their opponents,
just as certainly, were antagonistic to both the letter and
the spirit of the Amendments and wished them to have
the most limited effect. What others in Congress and
the state legislatures had in mind cannot be determined
with any degree of certainty.
An additional reason for the inconclusive nature of the
Amendment's history, with respect to segregated schools,
is the status of public education at that time.⁴ In the
South, the movement toward free common schools, sup-
* For a general study of the development of public education prior
to the Amendment, see Butts and Cremin, A History of Education in
American Culture (1953), Pts. I, II; Cubberley, Public Education in
the United States (1934 ed.), cc. II-XII. School practices current
at the time of the adoption of the Fourteenth Amendment are de-
scribed in Butts and Cremin, supra, at 269-275; Cubberley, supra,
at 288-339, 408-431; Knight, Public Education in the South (1922),
cc. VIII, IX. See also H. Ex. Doc. No. 315, 41st Cong., 2d Sess.
(1871). Although the demand for free public schools followed sub-
stantially the same pattern in both the North and the South, the
development in the South did not begin to gain momentum until
about 1850, some twenty years after that in the North. The reasons
for the somewhat slower development in the South (e. g., the rural
character of the South and the different regional attitudes toward
state assistance) are well explained in Cubberley, supra, at 408-423.
In the country as a whole, but particularly in the South, the War
492
OCTOBER TERM, 1953.
Opinion of the Court.
347 U.S.
level, inequality was found in that specific benefits en-
joyed by white students were denied to Negro students
of the same educational qualifications. Missouri ex rel.
Gaines V. Canada, 305 U.S. 337; Sipuel V. Oklahoma, 332
U. S. 631; Sweatt V. Painter, 339 U. S. 629; McLaurin V.
Oklahoma State Regents, 339 U. S. 637. In none of
these cases was it necessary to re-examine the doctrine to
grant relief to the Negro plaintiff. And in Sweatt V.
Painter, supra, the Court expressly reserved decision on
the question whether Plessy V. Ferguson should be held
inapplicable to public education.
In the instant cases, that question is directly presented.
Here, unlike Sweatt V. Painter, there are findings below
that the Negro and white schools involved have been
equalized, or are being equalized, with respect to build-
ings, curricula, qualifications and salaries of teachers, and
other "tangible" factors." Our decision, therefore, can-
not turn on merely a comparison of these tangible factors
in the Negro and white schools involved in each of the
cases. We must look instead to the effect of segregation
itself on public education.
In approaching this problem, we cannot turn the clock
back to 1868 when the Amendment was adopted, or even
bether
to 1896 when Plessy V. Ferguson was written. We must
consider public education in the light of its full develop-
it is 1854 luck 5> S
ment and its present place in American life throughout
9In the Kansas case, the court below found substantial equality
as to all such factors. 98 F. Supp. 797, 798. In the South Carolina
case, the court below found that the defendants were proceeding
"promptly and in good faith to comply with the court's decree." 103
F. Supp. 920, 921. In the Virginia case, the court below noted that
the equalization program was already "afoot and progressing" (103 F.
Supp. 337, 341); since then, we have been advised, in the Virginia
Attorney General's brief on reargument, that the program has now
been completed. In the Delaware case, the court below similarly
noted that the state's equalization program was well under way. 91
A. 2d 137, 149.
OFOF is LIBRARY 078830
BROWN v. BOARD OF EDUCATION.
493
483
Opinion of the Court.
the Nation. Only in this way can it be determined if
segregation in public schools deprives these plaintiffs of
the equal protection of the laws.
Today, education is perhaps the most important func-
tion of state and local governments. Compulsory school
attendance laws and the great expenditures for education
both demonstrate our recognition of the importance of
education to our democratic society. It is required in
the performance of our most basic public responsibilities,
even service in the armed forces. It is the very founda-
tion of good citizenship. Today it is a principal instru-
ment in awakening the child to cultural values, in
preparing him for later professional training, and in help-
ing him to adjust normally to his environment. In these
days, it is doubtful that any child may reasonably be
expected to succeed in life if he is denied the opportunity
of an education. Such an opportunity, where the state
has undertaken to provide it, is a right which must be
made available to all on equal terms.
We come then to the question presented: Does segre-
gation 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.
In Sweatt V. Painter, supra, in finding that a segregated
law school for Negroes could not provide them equal
educational opportunities, this Court relied in large part
on "those qualities which are incapable of objective meas-
urement but which make for greatness in a law school."
In McLaurin V. Oklahoma State Regents, supra, the
Court, in requiring that a Negro admitted to a white
graduate school be treated like all other students, again
resorted to intangible considerations:
his ability
to study, to engage in discussions and exchange views with
other students, and, in general, to learn his profession."
494
OCTOBER TERM, 1953.
Opinion of the Court.
347 U.S.
Such considerations apply with added force to children
in grade and high schools. To separate them from others
of similar age and qualifications 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. The effect of this
separation on their educational opportunities was well
stated by a finding in the Kansas case by a court which
nevertheless felt compelled to rule against the Negro
plaintiffs:
"Segregation of white and colored children in pub-
lic schools has a detrimental effect upon the colored
children. The impact is greater when it has the
sanction of the law; for the policy of separating the
races is usually interpreted as denoting the inferiority
of the negro group. A sense of inferiority affects
the motivation of a child to learn. Segregation with
what'f LAN
the sanction of law, therefore, has a tendency to [re-
tard] the educational and mental development of
show Donsay
negro children and to deprive them of some of the
benefits they would receive in a racial [ly] integrated
school system." 10
Whatever may have been the extent of psychological
knowledge at the time of Plessy V. Ferguson, this finding
is amply supported by modern authority." Any lan-
10 A similar finding was made in the Delaware case: "I conclude
from the testimony that in our Delaware society, State-imposed
segregation in education itself results in the Negro children, as a
class, receiving educational opportunities which are substantially
inferior to those available to white children otherwise similarly
situated." 87 A. 2d 862, 865.
11 K. B. Clark, Effect of Prejudice and Discrimination on Personal-
ity Development (Mideentury White House Conference on Children
and Youth, 1950); Witmer and Kotinsky, Personality in the Making
(1952), c. VI; Deutscher and Chein, The Psychological Effects of
Enforced Segregation: A Survey of Social Science Opinion, 26 J.
Psychol. 259 (1948); Chein, What are the Psychological Effects of
FORD LiBRARY
BROWN v. BOARD OF EDUCATION. 495
483
Opinion of the Court.
guage in Plessy V. Ferguson contrary to this finding is
rejected.
We conclude that in the field of public education the
doctrine of "separate but equal" has no place. Separate
educational facilities are inherently unequal. Therefore,
we hold that the plaintiffs and others similarly situated
for whom the actions have been brought are, by reason
of the segregation complained of, deprived of the equal
protection of the laws guaranteed by the Fourteenth
Amendment. This disposition makes unnecessary any
discussion whether such segregation also violates the Due
Process Clause of the Fourteenth Amendment.¹²
Because these are class actions, because of the wide
applicability of this decision, and because of the great
variety of local conditions, the formulation of decrees in
these cases presents problems of considerable complexity.
On reargument, the consideration of appropriate relief
was necessarily subordinated to the primary question-
the constitutionality of segregation in public education.
We have now announced that such segregation is a denial
of the equal protection of the laws. In order that we
may have the full assistance of the parties in formulating
decrees, the cases will be restored to the docket, and the
parties are requested to present further argument on
Questions 4 and 5 previously propounded by the Court
for the reargument this Term.¹³ The Attorney General
Segregation Under Conditions of Equal Facilities?, 3 Int. J. Opinion
and Attitude Res. 229 (1949); Brameld, Educational Costs, in Dis-
crimination and National Welfare (MacIver, ed., 1949), 44-48;
Frazier, The Negro in the United States (1949), 674-681. And see
generally Myrdal, An American Dilemma (1944).
12 See Bolling V. Sharpe, post, p. 497, concerning the Due Process
Clause of the Fifth Amendment.
13 "4. Assuming it is decided that segregation in public schools
violates the Fourteenth Amendment
"(a) would a decree necessarily follow providing that, within the
496
OCTOBER TERM, 1953.
Opinion of the Court.
347 U.S.
of the United States is again invited to participate. The
Attorneys General of the states requiring or permitting
segregation in public education will also be permitted to
appear as amici curiae upon request to do SO by Septem-
ber 15, 1954, and submission of briefs by October 1, 1954.14
It is 80 ordered.
limits set by normal geographic school districting, Negro children
should forthwith be admitted to schools of their choice, or
"(b) may this Court, in the exercise of its equity powers, permit
an effective gradual adjustment to be brought about from existing
segregated systems to a system not based on color distinctions?
"5. On the assumption on which questions 4 (a) and (b) are
based, and assuming further that this Court will exercise its equity
powers to the end described in question 4 (b),
"(a) should this Court formulate detailed decrees in these cases;
"(b) if so, what specific issues should the decrees reach;
"(c) should this Court appoint a special master to hear evidence
with a view to recommending specific terms for such decrees;
"(d) should this Court remand to the courts of first instance with
directions to frame decrees in these cases, and if so what general
directions should the decrees of this Court include and what pro-
cedures should the courts of first instance follow in arriving at the
specific terms of more detailed decrees?"
14 See Rule 42, Revised Rules of this Court (effective July 1, 1954).