On July 3, 1969, the Court of Appeals entered an order requiring
the submission of new plans to be effective this fall to accelerate
desegregation in 33 Mississippi school districts. On August 28, on
motion of the Department of Justice, that court suspended the July
3 order and postponed the date for submission of new plans to
December 1, 1969. The application to vacate the suspension of the
July 3 order is denied. Although MR. JUSTICE BLACK believes that
the "all deliberate speed" standard is no longer relevant, and that
unitary school systems should be instituted without further delay,
he recognizes that, in certain respects, his views go beyond
anything the Court has held, and he reluctantly upholds the lower
court's order.
See: 417 F.2d 852.
MR. JUSTICE BLACK, Circuit Justice.
For a great many years, Mississippi has had, in effect, what is
called a dual system of public schools, one system for white
students only and one system for Negro students only. On July 3,
1969, the Court of Appeals for the Fifth Circuit entered an order
requiring the submission of new plans to be put into effect this
fall to accelerate desegregation in 33 Mississippi school
districts. On August 28, upon the motion of the Department of
Justice and the recommendation of the Secretary of
Page 396 U. S. 1219
Health, Education, and Welfare, the Court of Appeals suspended
the July 3 order and postponed the date for submission of the new
plans until December 1, 1969. I have been asked by Negro plaintiffs
in 14 of these school districts to vacate the suspension of the
July 3 order. Largely for the reasons set forth below, I feel
constrained to deny that relief.
In
Brown v. Board of Education, 347 U.
S. 483 (1954), and
Brown v. Board of Education,
349 U. S. 294
(1955), we held that state-imposed segregation of students
according to race denied Negro students the equal protection of the
laws guaranteed by the Fourteenth Amendment.
Brown I was
decided 15 years ago, but, in Mississippi as well as in some other
States, the decision has not been completely enforced, and there
are many schools in those States that are still either "white" or
"Negro" schools, and many that are still all-white or all-Negro.
This has resulted in large part from the fact that, in
Brown
II, the Court declared that this unconstitutional denial of
equal protection should be remedied, not immediately, but only
"with all deliberate speed." Federal courts have ever since
struggled with the phrase "all deliberate speed." Unfortunately,
this struggle has not eliminated dual school systems, and I am of
the opinion that, so long as that phrase is a relevant factor, they
will never be eliminated. "All deliberate speed" has turned out to
be only a soft euphemism for delay.
In 1964, we had before us the case of
Griffin v. School
Board, 377 U. S. 218, and
we said the following:
"The time for mere 'deliberate speed' has run out, and that
phrase can no longer justify denying these Prince Edward County
school children their constitutional rights to an education equal
to that afforded by the public schools in the other parts of
Virginia."
Id. at
377 U. S.
234.
Page 396 U. S. 1220
That sentence means to me that there is no longer any excuse for
permitting the "all deliberate speed" phrase to delay the time when
Negro children and white children will sit together and learn
together in the same public schools. Four years later -- 14 years
after
Brown I -- this Court decided the case of
Green
v. County School Board of New Kent County, 391 U.
S. 430 (1968). In that case, MR. JUSTICE BRENNAN,
speaking for a unanimous Court, said:
""The time for mere
deliberate speed' has run out. . . ."
The burden on a school board today is to come forward with a plan
that promises realistically to work, and promises realistically to
work now."
Id. at
391 U. S.
438-439.
"The Board must be required to formulate a new plan . . . which
promise[s] realistically to convert promptly to a system without a
'white' school and a 'Negro' school, but just schools."
Id. at
391 U. S. 442.
These cases, along with others, are the foundation of my belief
that there is no longer the slightest excuse, reason, or
justification for further postponement of the time when every
public school system in the United States will be a unitary one,
receiving and teaching students without discrimination on the basis
of their race or color. In my opinion, the phrase "with all
deliberate speed" should no longer have any relevancy whatsoever in
enforcing the constitutional rights of Negro students. The Fifth
Circuit found that the Negro students in these school districts are
being denied equal protection of the laws, and, in my view, they
are entitled to have their constitutional rights vindicated now,
without postponement for any reason.
Although the foregoing indicates my belief as to what should
ultimately be done in this case, when an individual
Page 396 U. S. 1221
Justice is asked to grant special relief, such as a stay, he
must consider, in light of past decisions and other factors, what
action the entire Court might possibly take. I recognize that, in
certain respects, my views as stated above go beyond anything this
Court has expressly held to date. Although
Green
reiterated that the time for all deliberate speed had passed, there
is language in that opinion which might be interpreted as approving
a "transition period" during which federal courts would continue to
supervise the passage of the Southern schools from dual to unitary
systems.
* Although I feel
there is a strong possibility that the full Court would agree with
my views, I cannot say definitely that it would, and therefore I am
compelled to consider the factors relied upon in the courts below
for postponing the effective date of the original desegregation
order.
On August 21, the Department of Justice requested the Court of
Appeals to delay its original desegregation timetable, and the case
was sent to the District Court for hearings on the Government's
motion. At those
Page 396 U. S. 1222
hearings both the Department of Justice and the Department of
Health, Education, and Welfare took the position that time was too
short and the administrative problems too difficult to accomplish a
complete and orderly implementation of the desegregation plans
before the beginning of the 1969-1970 school year. The District
Court found as a matter of fact that the time was too short, and
the Court of Appeals held that these findings were supported by the
evidence. I am unable to say that these findings are not supported.
Therefore, deplorable as it is to me, I must uphold the court's
order which both sides indicate could have the effect of delaying
total desegregation of these schools for as long as a year.
This conclusion does not comport with my ideas of what ought to
be done in this case when it comes before the entire Court. I hope
these applicants will present the issue to the full Court at the
earliest possible opportunity. I would then hold that there are no
longer any justiciable issues in the question of making effective
not only promptly but at once -- now -- orders sufficient to
vindicate the rights of any pupil in the United States who is
effectively excluded from a public school on account of his race or
color.
It has been 15 years since we declared in
Brown I that
a law which prevents a child from going to a public school because
of his color violates the Equal Protection Clause. As this record
conclusively shows, there are many places still in this country
where the schools are either "white" or "Negro" and not just
schools for all children as the Constitution requires. In my
opinion, there is no reason why such a wholesale deprivation of
constitutional rights should be tolerated another minute. I fear
that this long denial of constitutional rights is due in large part
to the phrase "with all deliberate speed." I would do away with
that phrase completely.
Application to vacate suspension of order denied.
*
"The obligation of the district courts, as it always has been,
is to assess the effectiveness of a proposed plan in achieving
desegregation. There is no universal answer to complex problems of
desegregation; there is obviously no one plan that will do the job
in every case. The matter must be assessed in light of the
circumstances present and the options available in each instance.
It is incumbent upon the school board to establish that its
proposed plan promises meaningful and immediate progress toward
disestablishing state-imposed segregation."
Green v. County School Board, supra, at
396 U. S.
439.
"Where [freedom of choice] offers real promise of aiding a
desegregation program to effectuate conversion of a state-imposed
dual system to a unitary, nonracial system there might be no
objection to allowing such a device to prove itself in operation. .
. ."
"The New Kent School Board's 'freedom of choice' plan cannot be
accepted as a sufficient step to 'effectuate a transition' to a
unitary system. . . ."
Id. at
396 U. S.
440-441.