Turner v. Fouche,
396 U.S. 346 (1970)

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U.S. Supreme Court

Turner v. Fouche, 396 U.S. 346 (1970)

Turner v. Fouche

No. 23

Argued October 20, 1966

Decided January 19, 1970

396 U.S. 346


Appellants, Negro residents of Taliaferro County, Georgia, brought this action to challenge the constitutionality of the statutory system used in Taliaferro and many other Georgia counties to select juries and school boards. The scheme provides for a county school board of five freeholders, which is selected by the grand jury, which in turn is drawn from a jury list selected by the six county jury commissioners, who are appointed by the state superior court judge for the circuit in which the county is located. Although the population of Taliaferro County is about 60% Negro, the school board members were white, selected by a predominantly white grand jury, which had been selected by white jury commissioners. The complaint attacked Georgia's constitutional and statutory provisions for school board selection as accounting for the exclusion of Negroes and nonfreeholders from the school board and for the merely token inclusion of Negroes on the grand juries. A three-judge District Court, after a hearing, voiced concern that only 11 Negroes were on the 130-member grand jury list and adjourned to enable the defendants to remedy the situation. It noted that there were two school board vacancies and suggested that Negroes might be selected. A new grand jury list was prepared containing the names of 44 Negroes and 77 whites, and one of the school board vacancies was filled by a Negro. From the grand jury list, the superior court judge drew names leading to the impaneling of a new grand jury, of whose 23 members six were Negroes. To obtain the new grand jury roll, the jury commissioners obtained the list of 2,152 names of registered voters, and, aided by three Negroes, eliminated many names for poor health and old age, underage, death, absence from the county, and duplication, plus 225 about whom the commissioners could obtain no information and 178 (of whom 171 were Negroes) as not meeting statutory qualifications either because they were "unintelligent" or not "upright citizens." The 608 names left were alphabetically listed, and every other one was placed on the list of potential jurors. Of these 304, 113 (37%) were Negroes.

Page 396 U. S. 347

The District Court found that, prior to the commencement of the suit, Negroes had been systematically excluded from grand juries through token inclusion, but that the new grand jury list was constitutional, and it declined to invalidate on their face the provisions governing school board and grand jury selections or the freeholder requirement for school board membership. The court did enjoin the jury commissioners from systematically excluding Negroes from the grand jury system.


1. The constitutional and statutory scheme by which the Taliaferro County grand jury selects the school board is not unconstitutional on its face, as the scheme is not inherently unfair, or necessarily incapable of administration without regard to race. Carter v. Jur Commission, ante, p. 396 U. S. 320. Pp. 396 U. S. 353-355.

2. The District Court erred in its determination that the new grand jury list had been properly compiled. Pp. 396 U. S. 359-361.

(a) The underrepresentation of Negroes, as reflected by the fact that the 304-member list from which the new grand jury was drawn contained only 37% Negroes, compared with 60% Negroes in the county, should, absent a countervailing explanation by the appellees, warrant corrective action by a federal court charged with enforcing constitutional guarantees. P. 396 U. S. 359.

(b) The District Court should have responded to the elimination of 171 Negroes out of the 178 citizens disqualified for lack of "intelligence" or "uprightness," as, on this record, it cannot be said that this purge of Negroes did not contribute substantially to the underrepresentation. Pp. 396 U. S. 359-360.

(c) The District Court should have focused on the elimination of the 225 citizens for lack of information, as inquiry might have led to the discovery of many Negroes qualified for jury service. P. 396 U. S. 360.

(d) Appellants made out a prima facie case of jury discrimination, and the burden which fell on the appellees to overcome it was not met. Pp. 396 U. S. 360-361.

3. Appellants and members of their class have a constitutional right to be considered for public service without the burden of invidiously discriminatory qualifications, and, on this record, the limitation of school board membership to freeholders violates the Equal Protection Clause of the Fourteenth Amendment. Pp. 396 U. S. 361-364.

290 F.Supp. 648, vacated and remanded.

Page 396 U. S. 348

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