Judge Frank Hooper's Remarks: May 9, 1960

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

VIVIAN CALHOUN, et al

CITY OF ATLANTA, BOARD OF EDUCATION, et all

CIVIL ACTION NO. 6298

Atlanta, Georgia; May 9, 1960

Before

His Honor FRANK A. HOOPER, Judge

Excerpt from remarks of Court

Appearances:

For Plaintiffs:

Constance Baker Motley
E.E. Moore, Jr.
Donald L. Hollowell
A.T. Walden

For Defendants:

B.D. Murphy
Newell Edenfield
J.C. Savage

THE COURT: I'm going to make a statement here. I'm not going to enter any order of Court this morning. It'll have to be entered later, and what I'm stating here will be only the basis for an opinion which I will write later. But I think that the people of our State here should know as soon as possible about the immediate situation. I'll take this statement which I'm making more or less off the cuff and edit it and write it in the form of a formal opinion.

I want to give a brief history of this particular case. This suit was filed and as far as I can tell the people of Georgia were rather complacent about this whole situation. My colleague, Judge Boyd Sloan and I therefore in the fall of 1958 passed an order advising that this case would be tried before September, 1959. Not until that order was signed and the people began to see that something would be done before September, 1959, did the public take any interest in it hardly at all. At that time, there were meetings held and various organizations were gotten together and this that and the other to attempt to try to save the public schools, particularly in Atlanta.

This Court had a hearing in June, 1959, in which it declared that segregation as practiced in the Atlanta School System was illegal and must cease. The Atlanta Board of Education was directed to make a plan and submit it by December, 1959; which was done. There were certain defects in that plan which the City very willingly rectified and changed as stated by Counsel a moment ago. The plan was finally approved I think January l8th of this year. I was asked by the Plaintiffs to put that plan into immediate effect, which would mean to be effective as of September, 1960. As the Georgia Legislature had appointed a committee to study this matter and it was composed of nineteen outstanding Georgians, I stated at that time that I would reserve a ruling until this date, May the 9th, and give the Legislative Committee an opportunity to make their report. I said that that would not delay the plan being effective in September, 1960, and neither has this postponement of the trial delayed it. I didn't mean by that that I was going to order the plan to be effective as of September, 1960. A great many people, including some newspaper writers, made that inference themselves; but I never did say that the plan would be effective as of September, 1960. 1 merely said that by having a hearing on May the 9th rather than in January as to when it starts, that that would not delay it. It has not delayed it.

I could on this date order the plan to be effective as of September, 1960, because under the plan those applying for transfers have until the 15th of this month. I assume they already have their applications fixed up and they could very quickly file them and still get them in before May the 15th. I have always said throughout this whole matter that I would consider the question of the starting time as of the time after this committee reported. That is, I said that as of the time when the committee was appointed.

Now I do not agree with those who have said that the appointment of this legislative committee was futile. Whether by appointing it the Legislature was hoping to get more time or not, I do not know. Maybe they were. But I do not think that the appointment of the committee was a useless act, nor do I think that it has not been without very substantial benefits.

The majority report here signed by the Chairman, Mr. John A. Sibley--I regret to hear that he was injured a few days ago in an automobile accident. I am told that it was not serious, of which I am very glad--but this majority report is quite lengthy and I will not go into the details of it, but it makes several recommendations here, some of which require a constitutional amendment and some of which do not. It recommends statutes in regard to tuition grants by the State to students who are not attending the public schools. It provides for teacher retirement and certain things requiring a vote of the people. But as just pointed out, there are two recommendations made which do not require a constitutional amendment, which the Georgia Legislature to be elected next September and convening next January may adopt if they see fit, and that is the pupil placement or pupil assignment law which the Board of Education has already adopted, and which this Court has approved.

If the Georgia Legislature will allow the people of Atlanta to put through such a plan, it would prevent the closing of Atlanta schools in September, 1961.

The other provision which the Georgia Legislature could adopt which might prevent the closing would be to allow the people of Atlanta to vote on the question as to whether they would rather close their schools entirely rather than to have any integration or not. I'm not concerned now with the proposed legislative acts which would have to be ratified by the people, but merely point those two out.

Now the report of this legislative committee, sometimes called the Sibley Committee on account of its Chairman, states this: That in their hearings over the State of Georgia, that three to two witnesses favor maintaining segregation even though--even at the cost of abolishing public schools. That in itself shows a very decided shift in the sentiment of the people of Georgia. Had you put that to a vote a year ago, you wouldn't have had three favoring the maintaining of segregation at any cost and two voting the other way. You probably would have had all five voting to maintain segregation at any cost. So there is very definitely an increase in the number of people in the State of Georgia who fear the damage to the public school system by virtue of being closed for one year. They fear that so much that while they do not favor integration at all, they would rather have integration under a reasonable plan--I think a reasonable plan, which has been approved by this Court, which Mrs. Motley, Counsel for the Plaintiffs, says is the mildest plan that she's seen adopted anywhere. Personally, I think the plan would be approved by the higher courts. I think it would. I could be mistaken. It would be a gradual and moderate integration if it is approved. It would not throw all of our system into chaos and to a certain closing at least. Now I think it's well known that in Georgia we have a different feeling in the populous areas, in the cities, large towns, than what we have in the strictly rural area. Our cities and towns feel that they can handle the matter satisfactorily on account of the residential patterns that exist; and as I have previously pointed out, in some of my opinions on this matter, a white school located in the center of a white section will predominantly or altogether be filled with whites. A colored school [is] in the middle of a colored section by the Negroes. However, in the rural areas of Georgia a more different situation exists because and and the Negroes in different areas. The residential pattern is more or less scattered. There are a number of large, consolidated schools taking pupils from various areas, and these areas are the ones where there is some feeling at the present time that their preference would be to not to allow the City of Atlanta to have any integration whatsoever, but rather to have their representatives in the Legislature to vote against anything that would give Atlanta relief and let the Atlanta schools close.

I call attention to the facts stated in this legislative report as to the dangers that are inherent in that kind of an attitude, where the opinion of a three-judge Federal Court in Virginia discussed all of that and ruled that if you close any schools, it's unfair to the taxpayers in those areas to have to pay taxes and yet not get any schools, and as a result the court there in Virginia passed a decree which in effect ordered the Norfolk School System to be reopened on an integrated basis and enjoined the State officials from continuing to operate other schools unless the Norfolk Schools were likewise opened. That's the danger which our friends out in the rural area, or a great many, have seemed to overlook.

This Court has pointed out before that a great many Southern States have already adopted pupil placement laws such as that which has been approved for Atlanta. They not adopt pupil placement laws because they favored integration. They wanted segregation. I think I can safely say that at least for Mississippi, Alabama and South Carolina. And yet they passed these laws. They passed these laws so that if it came to the question of the Court ordering integration, they would have gradual integration and not a sudden, explosive integration. Now so far, the Georgia Legislature has not seen fit to pass any such law. I think that attitude is somewhat like a general that says he's not going to build up the fortifications around his army against an attack because he thinks that might invite the enemy to attack him. I don't think so. I think that if you may have to retreat, it's a good idea not to burn the bridges behind you. And I'm personally of the opinion that these other Southern States feel about integration the same way Georgia did, and were wise to put an escape there in case they ever needed it.

I want to make it clear too that of these nineteen outstanding people who signed this Sibley Report, all nineteen of them said that they were opposed to integration. They felt like that Georgia ought to be allowed to run like it has under a Supreme Court decision for the last eighty years under that decision, and ever since the State was founded, as far as segregation is concerned. Georgia about had time to get used to that practice ever since it was a State, and it's rather shocking to try to change over to any other basis. But the fact that so many people in our State now favor gradual or token integration as it's sometimes called rather than closing the schools shows there has been a great shift in the sentiment of the people, even those who are more or less vigorously opposed to any integration whatsoever. The majority of the members of this committee here said they favored segregation, but it's something they can't do anything about. I might say it's any harbor in a storm, or it's a question not of what you would like, but of what is inevitable. And if a storm comes you want a storm cellar. You certainly did not create the storm or want the storm, but you want a storm cellar if it comes, and I take that to be more or less the attitude of a lot of people in our State. Now that's one thing the Legislature could do, of course, without any constitutional amendment.

Now as was pointed out a moment ago, those gentlemen that signed the minority report, they are also outstanding citizens of this State. They do not go along with the majority or their recommendations, but I think the minority impliedly recognized the situation in which we are placed. Paragraph 4 of their report is, quote, that the Governor and the General Assembly of Georgia take such action and enact such measures as may be required from time to time consistent with the welfare and best interest of the children of Georgia, end quote, and it could well be that a great many people in the Legislature would vote to have some integration or a gradual plan rather than a closing of all the schools in Georgia, because a great many citizens in the State of Georgia and mothers and fathers that are not financially able to afford the luxury of a private school, they would rather have some integration than to have the schools to close and be thrown on their own resources as to educating their children.

Now there is another thing I think is very important The last Legislature which convened in January, 1960, were made up of men who as I said a moment ago almost without exception ran on a platform of no integration whatsoever. Since they were elected on that platform, a great many things have happened. We have had things to happen in Arkansas and we have had things to happen in Virginia. Next September, there'll be a great many other men running for the Legislature, Georgia Assembly, which is to meet in January, 1961. If those candidates for the Legislature who run in September and who'll convene in January go further than this minority report here of the Sibley Committee, they may find themselves in position that they got to vote against any give at all on the Atlanta situation, and force the closing of all the Georgia schools, even though at that time they may not think that's the best thing to do because they made promises to their constituents.

I want to make it clear that this Court's not trying to dabble into the affairs of the Legislature or any State official of the State of Georgia, but trying to be as helpful as possible. Neither is this Court trying to contrive for the people of Georgia some machinery whereby the decision of the U. S. Supreme Court can be evaded because I don't think we can evade it. The only thing this Court has been trying to do is to give the Georgia Legislature an opportunity of passing some law which--or plan--which has already been approved by the courts, the Supreme Court or a Circuit Court of Appeals which will permit the people of Georgia when integration comes by order of the Court of operating under some gradual plan rather than having the whole school system thrown into chaos and all closing and our school teachers all going away. And I have been careful not to try to make any direful predictions or anything of that sort because I don't know what will happen. But we have some inkling of that by what's happened in other states. Georgia may not have learned anything from Arkansas or Virginia. They may prefer even to wait as long as Virginia did until many, many thousands of children were out of school before they did anything at all. Some philosopher says that the one thing people learn from history is that you don't learn anything from history, and maybe Georgia is the same way. I don't know. I believe, though that with the leadership which has been furnished here by this Legislative Committee that Georgia might change its mind by next January. They might see fit to allow Atlanta to handle its own problem here and have some integration rather than to risk the dam breaking and the whole State being flooded.

Now this Legislative Committee I think was very carefully chosen. They are not people whose opinions should be treated lightly. You have here as a chairman one of Georgia's leading lawyers and bankers, and you have the General Counsel of that majority an able lawyer who has served with distinction in the Georgia Legislature, being a Senator. You have the chief people in Georgia who are interested in education and in keeping our schools open. Mr. Robert O. Arnold, Chairman of the Board of Regents; has charge of all the Georgia educational institutions on a higher level. You have Chancellor Harmon W. Caldwell, Chancellor of the University System. You have Doctor Claude Purcell, the Superintendent of Schools of the State of Georgia. And you have others there who have been named who are outstanding people, Senator Greer; Judge Boykin; Mr. Charles A. Cowan, President of the Georgia Municipal Association; Mr. Dent, President of Georgia State Chamber of Commerce; Mr. Kennimer, the head of the Georgia Education Association; Mr. Homer Rankin, President of the Georgia Press Association. I hope I haven't left any of them out. But all of those leaders of Georgia are vitally interested in education and they all pointed out the dangers we face and the fact that we had better do something about it. And yet every one of them said that they are not in favor of integration. They are in favor of keeping our system like it always has been. They point out what they think we had better do as against today. It might be dangerous to do otherwise.

Now in regard to the minority, these gentlemen see it differently. They say they want segregation. Well, so did the other group. They say that they want a guarantee that no Georgia child shall be forced against the desire of his parent or guardian to attend any public school where a child of the opposite race is enrolled. By that they refer to what's known as the freedom of choice plan which Virginia has adopted. I take it the majority doesn't differ with them on that. They say that second, they favor such legislation as may give grants in aid to children whose schools are integrated and where they wish to go somewhere else. I think maybe the majority agrees with that. I think a great many of our people do. Third, they favor the public school system being preserved on a segregated basis as far as it is possible to do so unless closed by unprecedented--by Federal Court decree. I don't think the majority would differ with them on that. The significant thing is, though, that the minority as I said before recommend that the Governor and General Assembly of Georgia take such action as may be required consistent with the welfare and best interests of the children of Georgia, and that is the thing on which this Court pins its hopes, that the Legislature in January, 1961, will do. If not, it's the last chance and it is the last chance that this Court, I think, I can give to the Legislature and people of Georgia to avoid what may come.

Therefore this Court is of [the] opinion that to order the Atlanta Public Schools to integrate under the plan as made in September, 1960, could mean but one thing: That is, the closing of Atlanta schools. That to postpone this until--to be effective as of May 1, 1961, will give the Georgia Legislature, a newly elected Legislature, an uncommitted Legislature just one chance to prevent this closing. However, under the present plan which the Court has approved, only the 12th grade was to be made subject to that plan, and applications for transfer assignments were to be made to the 12th grade. And I am--will in my order provide that next year, that would be made applicable not only to the 12th but to the llth grade, and that means that by deferring the start of this plan until September, '61, instead of September, '60, the completion of the plan will be on exactly the same date as though it had started at this time.

This statement that I have made, Ladies and Gentlemen, as I say is largely off the cuff, and I will have to edit it and put it in the form of a written opinion and an order of the Court.

source: Federal Archives, File 1, Box 55 E