COOPER v. AARON
358 U.S. 1 (1958)
OF EDITED AND NARRATED ARGUMENTS IN
for petitioners: Richard Butler, Little
Chief Justice Earl Warren: The Court is now reconvened in special term to consider an application by the petitioners for a writ of certiorari to the United States Court of Appeals for the Eighth Circuit in the case of William Cooper, et al., versus John Aaron, et al., Number 1 Miscellaneous.
Narrator: It's September 11th, 1958. The Court's regular term begins in October. But Chief Justice Earl Warren has called a special session for argument of this case. Only three times before have the justices met during their recess. But few cases have raised issues of such legal and political importance.
This case began with the Court's unanimous decision in 1954 in Brown versus Board of Education. Racial segregation in public schools violated the Constitution's equal protection clause. The Court ruled the next year that integration should proceed, in their words, with "all deliberate speed." Many southern officials viewed this phrase as an invitation for foot-dragging and delay. The school board in Little Rock, Arkansas, prepared a plan that would begin in 1957 with token integration of the city's elite school, Central High. The plan wouldn't end segregation in Little Rock schools for another ten years. Black parents refused to wait that long. They asked for legal help from the NAACP-the National Association for the Advancement of Colored People. Their lawyers asked federal judges to speed up integration in Little Rock. All they got was an order to admit nine black students to Central High. Even this limited victory enraged racial bigots, who circled the school on opening day with howling mobs. Arkansas governor Orval Faubus ordered National Guard troops to keep the black kids out of Central High. When they approached the school, soldiers forced them back with bayonets.
After three weeks of violence, President Dwight Eisenhower finally ended the insurrection. He sent Army troops to escort the black students into Central High. For the rest of the school year, they fought harassment every day, in school corridors and on sidewalks. The school board continued to fight the Supreme Court. Federal judge Harry Lemley agreed to delay further integration for more than two years. An appellate court reversed his order, and the Supreme Court accepted the board's appeal.
The Constitution proclaims that its provisions are "the supreme law of the land." State officials may not disobey its commands. This case tests the power of the Supreme Court to enforce constitutional rights. It also tests federal authority over claims of "states' rights." The real contestants are President Eisenhower and Governor Faubus. But the actual parties are virtually unknown. William Cooper is president of the school board. John Aaron is first in alphabetical order of the black children whose parents sued the board. Richard Butler, an experienced Little Rock lawyer, argues for the board.
Butler: We believe that the manner and the methods employed by the United States Supreme Court in the two Brown decisions of 1954 and 1955 recognized the complexities of this problem, as had previous courts in determining issues of a similar nature. Both of the Brown decisions, in our opinion, reflect an understanding by this Court of the history of the Negro race and of the cultural patterns throughout this land.
We believe that this Court recognized that time was required for certain cultural patterns to change and that obviously this Court recognized the necessity or at least the desirability of referring those matters to the local district courts for innumerable problems which this Court recognized would arise, and some of which were enumerated in the decision.
"Deliberate speed," as used by this Court, is certainly not just a phrase coined on the spur of the moment or developed as a philosophy of opportunism to solve an immediate problem, but instead to us it was a carefully conceived philosophy of deliberation which, along with legal reasons for delay as outlined by this Court in the second Brown decision, allows for the flexibility and the delay provided in the decision by District Judge Harry J. Lemley. In effect, it provides for a transition from one era to another or from one set of standards to another.
Narrator: Butler asked for a stay of court orders while Arkansas lawmakers debated ways to block school integration. Chief Justice Warren did not conceal his doubts.
Warren: Has the school board determined what it will do toward desegregation or toward leaving the matter as it was last year, in the event this court declines to grant this stay?
Butler: No, sir. It has not decided because it's almost compelled to see what statutes are passed by the general assembly now in session and various other things, which it has no way of determining, and this school board no doubt will have to meet those situations as they arise, as they have had to do all the past year.
Warren: Well, as to these specific children, have they been assigned to any school?
Butler: It is my information, Mr. Chief Justice, that they have now . . . (Warren: they have not been?) Yes sir, they have now been assigned to the all-Negro school, the new high school there, Horace Mann.
Warren: Well, isn't that, isn't that action toward segregating them again?
Butler: Oh, yes, sir, it is.
Narrator: Butler restated his appeal for delay.
Butler: It is impossible for the school board of Little Rock to operate a school program for the two thousand students at Central High School on an integrated basis at this time, and that unless the plan of desegregation is postponed for a reasonable length of time, that irreparable harm will be inflicted upon the students of both Negro and white race. Now the broad issue, of course, in this case is simply this: Can a court of equity postpone the enforcement of the plaintiffs' constitutional rights if the immediate enforcement thereof will deprive others-many others, as a matter of fact-of their constitutional rights to an education in a free public school?
In Little Rock as well as throughout the South, and in other places where this problem has arisen, the great mass of people are not law violators as such. They are not people who form mobs, they are not people who defy the law, but we submit, and this school board determined, that they were entitled to know what the law was. And as long as editorialists, popular editorialists in our community, were saying that this was not the law of the land, and that there were ways to get around it, and one court was saying one thing, and another court was saying another, and there were laws on the state statute books of Arkansas as well as other states throughout the South, diametrically opposed, as some people argued, some of them could be reconciled, some of them could not, with the decision in the Brown case, but it left the people of our community, as well as the people of many communities, in actual doubt as to what the law was.
Narrator: Justice Felix Frankfurter had little sympathy.
Frankfurter: The governor's calling out troops isn't the same thing as the uncertainty of what the law is. That has nothing to do with the uncertainty of the law. That's the action of the governor under what he thought was his refusal to abide by the law.
Butler: Well, this school board in Little Rock, Arkansas, was not faced with theories, it was faced with actualities which are undermining and which are going to destroy the public school system in Little Rock, and when it's destroyed, it'll be destroyed not just for white students, it'll be destroyed all the way up and down the line, unless they're given an opportunity to work this thing out in a climate of calm rather than in a climate of hysteria.
Narrator: Chief Justice Warren did not want mobs to decide legal questions.
Warren: Mr. Butler, I think there's no member of this Court who fails to recognize the very great problem which your school board has. But, can we defer a program of this kind, merely because there are those elements in the community that will commit violence to prevent it from going into effect?
Butler: Mr. Chief Justice, I think so, but not directed to the people who form mobs, not directed to the people who are law defiers-we're not standing up here taking, trying to argue for their side . . . (Warren: I know you're not) We are arguing for the great mass of people throughout the South, who I say again, and will say again and again, are not law defiers; they want to follow the law, but they-as of this moment-without certain state statutes having been tested in court, do not know just exactly what the law is in a particular given circumstance.
Narrator: Butler's final argument provoked a heated reply from Warren.
Butler: The point I'm making is this: that if the governor of any state says that a United States Supreme Court decision is not the law of the land, the people of that state, until it is really resolved, have a doubt in their mind and a right to have a doubt.
Warren: I have never heard such am argument made in a court of justice before, and I've tried many a case, over many a year. I never heard a lawyer say that the statement of a governor, as to what was legal or illegal, should control the action of any court.
Narrator: Thurgood Marshall speaks for Little Rock's black children. Marshall headed the NAACP legal staff for many years. Hc argued and won many civil rights cases before the Court, including Brown. He denounces Butler's appeal for delay.
Marshall: The truth of the matter is, these entire proceedings, starting with the filing of the petition of the school board way back in February, asking for time, the whole purpose of these proceedings is to get time. The objective of the proceedings is that the Little Rock schools be returned from desegregated to segregated status as of September school term.
I think we have to think about these children and their parents, these Negro children that went through this every day, and their parents that stayed at home wondering what was happening to their children, listening to the radio about the bomb threats and all of that business. I don't see how anybody under the sun could say, that after those children and those families went through that for a year to tell them: All you have done is gone. You fought for what you considered to be democracy and you lost. And you go back to the segregated school from which you came. I just don't believe it. And I don't believe you can balance those rights.
Narrator: Marshall spoke to the Court like a teacher.
Marshall: Education is not the teaching of the three R's. Education is the teaching of the overall citizenship, to learn to live together with fellow citizens, and above all to learn to obey the law. And the damage to the education in Arkansas and in Little Rock and in Central High comes about through the order of Judge Lemley which says that not only the school board and the state can and should submit to mob violence and threats of mob violence but that the federal judiciary likewise should do so. I don't know of any more horrible destruction of principle of citizenship than to tell young children that, those of you who withdrew, rather than to go to school with Negroes, those of you who were punished last year-the few that the school board did punish: Come back, all is forgiven, you will.
And therefore, I am not worried about the Negro children at this stage. I don't believe they're in this case as such. I worry about the white children in Little Rock who are told, as young people, that the way to get your rights is to violate the law and defy the lawful authorities. I'm worried about their future. I don't worry about those Negro kids' future. They've been struggling with democracy long enough. They know about it.
Narrator: Marshall appealed to the rule of law.
Marshall: The way this case stands, there must be a definitive decision-I hate to use the two together, it's bad English but it's the best way I can do it-that there be no doubt in Arkansas that the orders of that district court down there must be respected and cannot be suspended and cannot be interfered with by the legislature or anybody else. And less than that I don't think will give these young children the protection that they need and they most certainly deserve.
Narrator: The justices also listened to Solicitor General J. Lee Rankin. He speaks for the federal government as a friend of the court.
Rankin: We think that this case involves the question of the maintenance of law and order, not only in this community and the state of Arkansas, but throughout this country.
Now, the desegregation of schools has gone forward in many areas of this country. It has gone ahead in border states, many areas without any difficulties whatever, and in some of the areas even of the deeper South. What is there in this community, Little Rock, in Arkansas, that's different? Certainly people with pigment in their skin-black or white-were involved in those cases, in those areas, where the schools were desegregated without trouble between them. The element in this case is lawlessness. It is a community, a small number at first at least-maybe more later-who decided they were going to defy the laws of this country. And I say to you that that's a problem that's inherent in every little village, great city, or country area of this United States. There isn't a single policeman that isn't going to watch this Court and what it has to say about this matter that doesn't have to deal with people every day who don't like the law lie is trying to administer and enforce. And he has to go against that public feeling and will and do his duty. That's the responsibility of every man in this country that's fit to occupy public office.
Narrator: Like Marshall, Rankin appealed to the rule of law.
Rankin: So I say to you, if this school board has any doubt about what the law is, it can turn to the Constitution that it is under oath to support, just as the members of this Court and myself. They should look first to the Constitution. That's what the Constitution, our basic document, says. And then they can look to any federal laws or treaties. And then they can look down to sec if there is anything in the constitution of the state or the state laws or their own regulations that they should enforce.
But I say, I think without any proper challenge, that their obligation before this country, in their own community, and before this Court, is to use all the power that they have and exhaust it to try to perform that oath, and first start out with trying to carry out the obligations of the Constitution of the United States as interpreted by this Court.
And in conclusion, let me say that on this Supreme Court building is carved the inscription, " Equal Justice Under Law." All Americans take pride in this controlling principle of our government. It is there as a reminder of the great objective of this Court in all of its decisions. Now, in the gravity of this new challenge to constitutional rights, I respectfully suggest that each time that it becomes an issue the Court must say, in a manner that cannot be misunderstood, throughout the length and breadth of this land: There can be no equality of justice for our people if the law steps aside, even for a moment, at the command of force and violence.
Narrator: Richard Butler made a final appeal for delay.
Butler: All we're asking, all we're asking at this time, is for time, to try to do those things and work out these problems that may bring peace and harmony, and do it in a period of calm when they can be done and not in a period of turmoil and strife.
Can it be logically argued that the ruling of this Court can be carried out, as this Court said it should, in an effective manner, when schools are closed, or if operated at all, with armed troops parading not only the grounds but the halls and classrooms themselves? Patience and forbearance for a short while might save our public school system in Little Rock.
Narrator: The justices had no patience with appeals for delay. The day after this argument, on September 12th, 1958, the Court issued a three-paragraph opinion. The justices unanimously affirmed the lower court orders that integration of Little Rock schools proceed without delay.
Two weeks later the Court issued a longer, detailed opinion. Normally, one justice writes for the Court. In this case-to emphasize its importance-all nine justices signed the opinion. They agreed that the case "raises questions of the highest importance" to the federal system of government. They rejected the claim that, in their words, "there is no duty on state officials to obey federal court orders resting on this Court's considered interpretation of the United States Constitution."
Arkansas officials attempted, the Court said, "to perpetuate . . . the system of racial segregation which this Court" struck down in the Brown case. The opinion documented the record of violence against black students, inside and outside Central High School. The justices wrote that "violent resistance" to integration was "directly traceable" to Governor Faubus and Arkansas lawmakers. The justices did not mince words. "The constitutional rights" of black children, they said, "are not to be sacrificed or yielded to the violence and disorder which have followed upon the actions of the Governor and Legislature."
The justices firruly upheld judicial supremacy over state action. The Brown decision "is the supreme law of the land," they said. They expressed contempt for officials like Governor Faubus who waged, in their words, "war against the Constitution. "
War over school integration continued after the Court's ruling. Little Rock officials refused to obey court orders and closed all high schools until 1959. Finally, parents and voters who cared more about education than segregation changed the school board. The integration of Little Rock schools resumed.
The Court's decision established an important precedent. But it did not end conflict over racial issues that have divided Americans since the time of slavery. School segregation, a relic of that system, stubbornly refuses to go away. Judges can decide legal issues, but they can't change housing patterns or cultural attitudes. Since its unanimous decision in Cooper v. Aaron, the Supreme Court has split over cases dealing with school integration. Brown remains on the books, but the question remains: Will black children in schools across the country receive the integrated-and equal-education the Constitution commands? It is a fateful question for the country.
EDITED SUPREME COURT OPINION
Cooper v. Aaron
Opinion of the Court by THE CHIEF JUSTICE, MR. JUSTICE BLACK, MR. JUSTICE FRANKFURTER, MR. JUSTICE DOUGLAS, MR. JUSTICE BURTON, MR. JUSTICE CLARK, MR. JUSTICE HARLAN, MR. JUSTICE BRENNAN, and MR. JUSTICE WHITTAKER.
As this case reaches us it raises questions of the highest importance to the maintenance of our federal system of government. It necessarily involves a claim by the Governor and Legislature of a State that there is no duty on state officials to obey federal court orders resting on this Court's considered interpretation of the United States Constitution. Specifically it involves actions by the Governor and Legislature of Arkansas upon the premise that they are not bound by our holding in Brown v. Board of Education, 347 U. S. 483. That holding was that the Fourteenth Amendment forbids States to use their governmental powers to bar children on racial grounds from attending schools where there is state participation through any arrangement, management, funds or property. We are urged to uphold a suspension of the Little Rock School Board's plan to do away with segregated public schools in Little Rock until state laws and efforts to upset and nullify our holding in Brown v. Board of Education have been further challenged and tested in the courts. We reject these contentions. . . .
The following are the facts and circumstances so far as necessary to show how the legal questions are presented. . . .
On May 2o, 1954, . . . the Little Rock District School Board adopted, and on May 23, 1954, made public, a statement of policy entitled "Supreme Court Decision-Segregation in Public Schools." In this statement the Board recognized that
Thereafter the Board undertook studies of the administrative problems confronting the transition to a desegregated public school system at Little Rock. It instructed the Superintendent of Schools to prepare a plan for desegregation, and approved such a plan on May 24, 1g55, seven days before the second Brown opinion. The plan provided for desegregation at the senior high school level (grades ten through twelve) as the first stage. Desegregation at tile junior high and elementary levels was to follow. It was contemplated that desegregation at the high school level would commence in tile fall of 1957, and the expectation was that complete desegregation of the school system would be accomplished by 1963....
While the School Board was thus going forward with its preparation for desegregating the Little Rock school system, other state authorities, in contrast, were actively pursuing a program designed to perpetuate in Arkansas the system of racial segregation which this Court had held violated the Fourteenth Amendment. First came, in November 1956, an amendment to the State Constitution flatly commanding the Arkansas General Assembly to oppose "in every Constitutional manner the Un-constitutional desegregation decisions of May 17, 1954 and May 31, 1955 of the United States Supreme Court" . . .
The School Board and the Superintendent of Schools nevertheless continued with preparations to carry out the first stage of the desegregation program. Nine Negro children were scheduled for admission in September 1957 to Central High School, which has more than two thousand students. Various administrative measures, designed to assure the smooth transition of this first stage of desegregation, were undertaken.
On September 2, 1957, the clay before these Negro students were to enter Central High, the school authorities were met with drastic opposing action on the part of the Governor of Arkansas who dispatched units of the Arkansas National Guard to the Central High School grounds and placed the school "off limits" to colored students. As found by the District Court in subsequent proceedings, the Governor's action had not been requested by tire school authorities, and was entirely unheralded. . . . The next day, September 3, 1957, the Board petitioned the District Court for instructions, and the court, after a hearing, found that the Board's request of the Negro students to stay away from tile high school had been made because of tire stationing of the military guards by tile state authorities. The court determined that this was not a reason for departing from the approved plan, and ordered the School Board and Superintendent to proceed with it.
On the morning of the next day, September 4, 1957, the Negro children attempted to enter the high school but, as the District Court later found, units of the Arkansas National Guard "acting pursuant to the Governor's order, stood shoulder to shoulder at the school grounds and thereby forcibly prevented the nine Negro students . . . from entering," as they continued to do every school day during the following three weeks. . . .
The next school day was Monday, September z3, 1957. The Negro children entered the high school that morning under the protection of the Little Rock Police Department and members of the Arkansas State Police. But the officers caused the children to be removed from the school during the morning because they had difficulty controlling a large and demonstrating crowd which had gathered at the high school. . . . On September 25, however, the President of the United States dispatched federal troops to Central High School and admission of the Negro students to the school was thereby effected. Regular army troops continued at the high school until November 27, 1957. They were then replaced by federalized National Guardsmen who remained throughout the balance of the school year. Eight of the Negro students remained in attendance at the school throughout the school year.
We come now to the aspect of the proceedings presently before us. On February 2o, 1958, the School Board and the Superintendent of Schools filed a petition in the District Court seeking a postponement of their program for desegregation. Their position in essence was that because of extreme public hostility, which they stated had been engendered largely by the official attitudes and actions of the Governor and the Legislature, the maintenance of a sound educational program at Central High School, with the Negro students in attendance, would be impossible. The Board therefore proposed that the Negro students already admitted to the school be withdrawn and sent to segregated schools, and that all further steps to carry out the Board's desegregation program be postponed for a period later suggested by the Board to be two and one-half years.
After a hearing the District Court granted the relief requested by the Board. Among other things the court found that the past year at Central High School had been attended by conditions of "chaos, bedlam and turmoil"; that there were "repeated incidents of more or less serious violence directed against the Negro students and their property"; that there was "tension and unrest among the school administrators, the class-room teachers, the pupils, and the latters' parents, which inevitably had an adverse effect upon the educational program"; that a school official was threatened with violence; that a "serious financial burden" had been cast on the School District; that the education of the students had suffered "and under existing conditions will continue to suffer"; that the Board would continue to need "military assistance or its equivalent"; that the local police department would not be able "to detail enough men to afford the necessary protection"; and that the situation was "intolerable." . . . The Negro respondents appealed to the Court of Appeals for the Eighth Circuit and also sought there a stay of the District Court's judgment. . . .
One may well sympathize with the position of the Board in the face of the frustrating conditions which have confronted it, but . . . [t]he constitutional rights of respondents are not to be sacrificed or viclded to the violence and disorder which have followed upon the actions of the Governor and Legislature. . . . Thus law and order are not here to be preserved by depriving the Negro children of their constitutional rights. . . .
The controlling legal principles are plain. The command of the Fourteenth Amendment is that no "State" shall deny to any person within its jurisdiction the equal protection of the laws . . .[T]he prohibitions of the Fourteenth Amend ment extend to all action of the State denying equal protection of the laws; whatever the agency of the State taking the action . . . or whatever the guise in which it is taken . . . In short, the constitutional rights of children not to be discriminated against in school admission on grounds of race or color declared by this Court in the Brown case can neither be nullified openly and directly by state legislators or state executive or judicial officers, nor nullified indirectly by them through evasive schemes for segregation whether attempted "ingeniously or ingenuously." . . .
What has been said, in the light of the facts developed, is enough to dispose of the case. However, we should answer the premise of the actions of the Governor and Legislature that they are not bound by our holding in the Brown case. It is necessary only to recall some basic constitutional propositions which are settled doctrine.
Article VI of the Constitution makes the Constitution the "supreme Law of the Land." In 1803, Chief Justice Marshall, speaking for a unanimous Court, referring to the Constitution as "tile fundamental and paramount law of the nation," declared in the notable case of Marbury v. Madison, 1 Cranch 137, 177, that "It is emphatically the province and duty of the judicial department to say what the law is." This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system. It follows that the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land, and Art. VI of the Constitution snakes it of binding effect on the States "any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." Every state legislator and executive and judicial officer is solemnly committed by oath taken pursuant to Art. VI, cl. 3, "to support this Constitution." . . .
No state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it. . . .
It is, of course, quite true that the responsibility for public education is primarily the concern of the States, but it is equally true that such responsibilities, like all other state activity, must be exercised consistently with federal constitu tional requirements as they apply to state action. The Constitution created a government dedicated to equal justice under law. The Fourteenth Amendment embodied and emphasized that ideal. State support of segregated schools through any arrangement, management, funds, or property cannot be squared with the Amendment's command that no State shall deny to any person within its jurisdiction the equal protection of the laws. The right of a student not to be segregated on racial grounds in schools so maintained is indeed so fundamental and pervasive that it is embraced in the concept of due process of law. . . .
decision in Brown was unanimously reached by this Court only
after the case had been briefed and twice argued and the issues had
been given the most serious consideration. Since the first Brown
opinion three new justices have come to the Court. They arc at one with
the justices still on the Court who participated in that basic decision
as to its correctness, and that decision is now unanimously reaffirmed.
The principles announced in that decision and the obedience of the States
to them, according to the command of the Constitution, are indispensable
for the protection of the freedoms guaranteed by our fundamental charter
for all of us. Our constitutional ideal of equal justice under law is
thus made a living truth.