Borders v. Rippey

184 F. Supp. 402

• Court: District Court, N.D. Texas
• Decided: June 4, 1960
• Docket: Civ. 6165
• Status: Published

Opinion

DAVIDSON, District Judge.

We come now to hear the plans submitted by the Dallas School Board and the opposition from the plaintiffs.

We bear in mind that nothing we can do will dispense with integration. The matter under consideration is the adoption of a plan that will call for the least worry and confusion.

The City of Dallas has had exceptionally good relations between the two races and the question largely is how much haste can be exercised in applying integration by force.

In referring this back to the trial court, the Supreme Court said:

“Full implementation of these constitutional principles may require solution of varied local school problems. * * * Because of their proximity to local conditions and the possible need for fui'ther hearings, the courts which originally heard these cases can best perform this judicial appraisal. * * *

“In fashioning and effectuating the decrees, the courts will be guided by equitable principles. Traditionally, equity has been characterized by a practical flexibility in shaping its remedies and by a facility for adjusting and reconciling public and private needs. These cases call for the exercise of these traditional attributes of equity power. * * * ” Brown v. Board of Education, 349 U.S. 294, 299, 300, 75 S.Ct. 753, 756, 99 L.Ed. 1083.

Few things were ever done in haste but what a further consideration in retrospect would show that a better job could have been done.

The protest or contest on the School Board’s plan by the plaintiffs offers no substitute but amounts to a demand for unconditional surrender of the Board’s position and calls for total and complete integration only.

We do not think this position is necessarily implied from the wording of the Brown case which is above quoted.

Integration of Races by Force

The question at issue in this hearing concisely stated is: Can the white and black school children of Dallas be presently and hastily integrated by force without frustration and injury to their educational opportunities.

In reaching our conclusions upon so vital a subject history, psychology and testimony will be considered each in its place.

History repeats itself. It was Patrick Henry’s lamp of experience by which his feet were guided and this experience is not limited to his life but reaches back through the annals of time. The same act will produce like result. What happened yesterday under like circumstances will probably happen again tomorrow. In determining the future of a people history transcends all other guides in showing the way. We must not fail to consult it in this present dilemma. In such connection there are those who would decry the importance of historical matter in questions like this. To them history is like unto the horse and buggy days or the covered wagon regime and is now outmoded by modern discovery and appliances. To so consider it is a grave error. Justice is the same today that it was yesterday. Truth, integrity, reverence, honor, loyalty, virtue have been through the eternal ages, and are today the same thing. It isn’t the vehicle that counts, but the man that rides in it whether it was a covered wagon or a jet plane. They each may reach their destination and make their mark in history.

A decree and mandate of a court is force calling if need be the power of the nation itself. Force the key and you jam the lock. Ishmael was forced into the desert maybe to die that there be a warm place made for his half brother Isaac. Ishmael lived, however, and in hate generated by force raised the back of his hand to Isaac forever. Three thousand years have gone by, but there is firing on the Syrian border and even under the walls of the Holy City, though the contending parties, the Arab and the Hebrew, are descendants of a common father, Abraham. The armies of France have by force wholly failed to make the French settler in Algeria and the Arabs love each other.

In this distracting question who can say that time and patience may not find a better way to amicably adjust the differences than the use of force ?

“I do believe that if we attempt merely by passing a lot of laws to force some one to like some one else we are just going to get into trouble.” General Dwight D. Eisenhower in 1948

When Ike so reasoned it was the Texan within him. It sounds like home folks talking.

Proceed Not Too Rapidly

All people stand to lose by the hasty, rash application of force.

Why so urgent and imperative is speedy action? What has integration itself accomplished in the lands where it has existed for centuries ?

In the colonial period France had two promising colonies in America: Quebec on the frozen icebound shores of the St. Lawrence and Haiti, Guadalupe et al. in the West Indies. In Quebec there was no integration. The 4,000,000 French Canadians are a religious, orderly people. In Haiti the integration had been but shortly allowed when one race destroyed the other. In Puerto Rico integration and amalgamation early became the order. In the Southern States the white and the former slave each retained his racial integrity. Is the Puerto Rican any better advanced than the Southern Negro? No Southern Negro has ever shot up the halls of Congress, killed the President’s guard and sought his life. One was integrated and the other was not.

Cuba was integrated at an early period. Costa Rica has no racial amalgamation or integration. All is peace, progress and beauty in Costa Rica, while blood and discord flow in Cuba.

Integration has not helped either race. It has retarded the development of every land where it has occurred.

Why rush it here? Rather “let patience have his perfect work.”

If we are to have integration better let it be by consent and not by force.

Few things have been done in haste but that with time and due consideration it would have been a better job.

Slavery

“Some strand of our own misdoing is involved in every quarrel.” Robert Louis Stevenson

The problem now before us stems from another in the past — human slavery. Its blight follows us down through the memory of our forebears from wheresoever we may have come. It reaches from the devout men of New England like Governor Endicott, Elder Brewster, Governor Bradford, Roger Williams and others. Their sons and descendants sold prisoners of war, then wild Indians, into slavery as did the Romans in the centuries past. Columbus, the Christian gentleman that he was, by force and fraud sent five shiploads of natives from the West Indies to be sold in the slave markets of Spain. And from the West Indies up it touched us all in one form or another.

It was the last fragment of an institution handed to us from a universal practice and since everybody had been guilty it was tolerated since the other fellow was doing it too. Even the King of England when petitioned by the Legislature of the Colony of Virginia 1 to stop the slave traffic turned a deaf ear. His ships were perhaps participating in the traffic.

Nothing in all the dark stories of the years surpasses the horror of a slave ship. A wild people from the desert, from the jungles on board a ship. They could not understand the language of the shipmaster. They knew not the use of sewerage even if any had been available. The very odor of the cargo was stifling to any that came near.

The slave had been recently at home in the African continent, but when one tribe fought against the other the losing side or some portion of it was sold into slavery just as Joseph was by his brethren. The Arab slave trader often brought him to a port and loaded him on a ship to be brought to the new America, first to the Indies and then to the plantations of the South. When he would debark from the ship he knew not what next. Nobody could tell him and he could tell nobody. He could neither read nor write. No one knew his name and it was yet some generations before he had a family or surname. To be freed from his recent captors and from the foul condition of the ship was for a moment a relief no doubt to this poor fellow when he was inducted into the wide open space of a Southern plantation with open air, food and kindness.

The first step of the planter was to teach him by degrees ability to speak English, the vocabulary being short at first. The next forward step of the slave was his conversion to Christianity. The masters and the masters’ ministers were the prime movers. The whites attended church in the forenoon. In the afternoon the slaves were inducted into the same building and heard the same preacher. Later on the slaves began to develop ministers of their own and though they were not educated ministers they partook of what they had heard and their reasoning and understanding of the peace of eternal life and the punishment for wrongdoing became almost immediately an important part of their life. Immortality yes, for a good and just life here there was a reward and beyond the river of death were the members of his departed family waiting in heaven and that was the reward of doing right. There was a reward for wicked living. He learned that in the story of Lazarus when Dives, the selfish old sinner, looked up from hell and asked God to send Lazarus down with some water to cool his parched tongue because he was “tormented in these flames.” He heard and accepted that great and final judgment when the last day should arrive. When the life of the good would be found written in a book and the book should be opened and the Great Judge would say to those whose names were not written therein, depart to my left into eternal and “everlasting fire.” The Negro therefore believed in heaven and hell just as our ministers did two generations back and just as our parents did. He believed it without a doubt.

This religious faith led to one of the most phenomenal events in religious history. When the fratricidal strife was on between the states, when brother sought the blood of brother and eleven states walked out of the Union, every man available went into the army. There was nobody left to run the plantations but the slaves and the mistress of the great house. She took these slaves and they ran the plantation. She knew how to do it. They also had a Negro foreman who also knew how to do it and the South carried on. Production kept up. They had plenty on which to live. Sherman’s army found an abundance as he marched through Georgia. Four years the bloodletting went on. More than two million black men running the plantations under the direction of their mistress never for once took her life or molested her person. Such a story of loyalty’s devotion was never before told nor since witnessed. They wouldn’t molest that mistress. They knew in hell they would wake up and they didn’t want to go. A religious faith that carried with it a firm belief in the punishment for wrongdoing and a reward for righteous living bore fruit in this distressing hour. Quite different is the confused, latterday delinquent who now has no dream of immortality or no faith of his own and who thinks supernatural and superstition are twin words and that the devil and Santa Claus are one person and that’s nobody but pa.

Another thing could have entered into it to some degree. The mistress of the plantation was something of a physician in her own family. She knew all the old home remedies and she knew how to rear h.er children and treat them when they were sick. Every remedy she used in her own household she used in the cabin of her slaves. They looked to her when in pain, when in trouble, when hungry and when in need. She was their great benefactor and they did not harm her.

Indeed as of old

“The eyes of the servants look unto the hand of their masters. The eyes of the maiden to her mistress.” 123rd Psalm

The Negro when treated kindly is one of the most loyal of all races. But there came an interruption. He was summoned up to the big house and told he was now free. This was welcome news to him. He had been expecting it. But these strong black people wept at the feet of their mistress, not because they were free but because they were parting from some one they loved. Pardon a personal reference as it were, but such is the story that my grandmother has often told me. Just the other day we were talking to Honorable Neth Leachman, an outstanding member of the Dallas Bar. His grandparents were slaveholders in Harrison County near the City of Marshall and without knowing the story of my own grandmother he told me in identical language the story of his grandmother and how the slaves wept when freed.

But the slave had a new leader. The carpetbagger came for entirely selfish reasons. He caused the Negro in so many ways to forget his God. The happy relation between the white and the black was interrupted and even race riots seemed to be in the offing and for 10 years the Negro looked to a new leader.

However, when President Hayes withdrew the army the Negro now looked round and ere long he and the son of his former mistress were together again, almost as before. Booker Washington so fully illustrated this in his great speech delivered at Wiley University at Marshall in the heyday of his life and strength. Turning to the young men from that institution, whither I had gone with the superintendent of public instruction and others, he said to the young Negroes present: If you want to climb, there is a way. There is a sure way and at which none will say to you nay. The route is by excellence. If you are a janitor, be a better janitor than any other janitor. If you wash clothes, wash them cleaner. If you farm, raise a better crop, and like the man that built the mouse trap the world will want you and need you. Excellence brings promotion just like gravity causes water to flow.

At this time the Negroes were beginning to acquire homes and farms in the county. Occasionally an unscrupulous man would get their land notes and try in this and various ways to defraud them of their purchase. I represented quite a number and I never lost a suit for a Negro when I represented him in a land case. So well was this recognized that Honorable S. P. Jones, a very prominent attorney in the same city, remarked that anyone that represented a white man in a suit against a Negro when there was land involved started in the case with a handicap because the white juror of the county took it for granted that the white man was probably trying to steal the Negro’s land.

Referring again to the days of slavery, again I illustrate from my own family. My grandfather and great-grandfather had many, many slaves. My great-grandfather built his slaves brick houses that they might be comfortable. He taught them to be good carpenters, to be good bricklayers as well as farmers. He used a Negro for foreman and never let a slave be whipped except upon his own orders. The foreman was named Nathaniel, his wife Chaney. He gave him a horse and buggy and set him free. I read a little sketch the other day where the last surviving slave of Thomas Jefferson was quoted as staying, “Master Tom was always kind to us.”

I tell these little incidents because they are only specimens of hundreds that occurred through the country. The mountain does not tell the course of the wind. The straw on its side will and does.

The Booker.Washington slogan of excellence reaches every avenue of life. I see before me in this courtroom a Negro lawyer raised in Sherman, a town about the size of Marshall. He rose to distinction in that town. He commanded the respect and admiration of the white lawyers. He succeeded there and has moved here to Dallas. No one holds any animus towards W. J. Durham.

The formula of Booker Washington for the Negro’s future was embraced in the word excellence and along the same line was a former decision of our highest court which at that time was the law as it interpreted it, rendered in 1896, the case being Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256. That decision in effect provided that the Negro as a race was entitled under the Constitution to equal opportunities in every field covered by the Constitution and the law of the land. In other words, it embraced the very epitome of free government — equal opportunities. Equal opportunity to the youth is held out in every schoolroom, in every court, in all elements of justice and freedom. Equal opportunity to the black race and the white race has long been the policy of our government. I have here before me some pictures for instance of the school buildings in the City of Dallas in which the colored youth are being taught. In the years gone by few children either white or black ever had the opportunity of attending school in such buildings. With equal opportunity to progress under the law and to rise under the natural law of excellence the Negro has made magnificent progress. Joe Louis did not need an act of Congress or a decision of a court to enable him to be the world’s champion. His excellence in taking and giving punishment was the test. The Negro has now in proportion to the population largely taken over prize fighting and boxing as a sport and an entertainment. His rise was not an act of Congress nor a decree of a court. The Negro has appeared upon the diamond. The court didn’t put him there, the law didn’t put him there. He got there because he was able to run and play ball and excel as Booker Washington advised.

If there is a good farm or plantation for rent the Negro doesn’t need the law or a court to give him an award or chance by which he may take over the profit and benefit of that plantation. The only test, is he a better farmer and can he make better result, again Booker Washington’s test of excellence.

We have elsewhere spoken of Wiley University. It was really a great Negro school under the care and direction of its former president Dr. M. W. Dogan. By his invitation I have on a number of occasions visited his school. And when his choir which embraced almost every student would sing “Swing Low, Sweet Chariot” no grand opera has ever surpassed it. The very rafters would seem to rise and swell with the tones of melody and music. They needed no court or legislative enactment to attain this perfection, only a matter of excellence.

For a number of years I was City Attorney in Marshall when Dogan was running the school. During that time hundreds of colored boys passed through this University and not during the whole six years did one of them ever come into the police court of that city, so well behaved were these young men. This too was a matter of excellence resulting under the training of a great man. As long as he lived he would frequently wire me or write me his congratulation or approval on different things that had come before me and though he is gone his grandchildren still remember me by sending notices of their graduation in school.

Under the system that we have enjoyed for the past 60-odd years at least the Negro has had few handicaps and today if a Negro doctor, and there are many good Negro doctors, should discover a cure for cancer, the white population would flock to him for treatment. They would not ask about his color. Again, according to Booker Washington, it would be a matter of excellence. The Negro has not been held down and denied opportunities as some mistaken minds have supposed. I was impressed recently by the observation of a Negro minister who in speaking to me said: “You white people have had 4000 years to reach your standard while we Negroes have had only about 90. We think we are doing pretty well.” I had to admit in my mind that he had something.

The Negro has a racial pride where he is let alone as well as the white. And he has something to be proud of. His advancement from slavery has been one of the most marvelous stories ever told. He has a right to have his child or his grandchild to be born black like he is.

When I was practicing law in Marshall a colored woman sought to employ me to sue her lodge. She stated that her lodge was designed to preserve the purity and integrity of the colored race and that any member who broke their rules in that particular was expelled and that she had been unjustly expelled because the white man calling at her house came as a bill collector for furniture and not for any evil or improper purpose. I didn’t take the case, but I commended the purpose of the lodge.

The colored ministers have joined in this attitude and you can well see the result. You walk along streets where the Negroes are more numerous than the whites, but you rarely see a mulatto child. An elderly darkie observing a mulatto child: “He can’t help it. I feel kindly toward him, but I don’t think much of his mama and papa.”

The Tragic Era

There are those who would question the kindly feeling of white to colored and then further ask if this good relation exists why do Southern people resist integration. Fear! Fear of that which was and which may happen again. Memory of the tragic era, the ten years of Reconstruction, is still green in the minds of the old South. Perhaps you have only a very indistinct memory, almost no information concerning such a period. Read “The Tragic Era” by Claud Bowers, a Northern Congressman, and you will be astonished by what took place.

Listen to the stories that have been told and written and preserved by the surviving inhabitants of this era. Read Ellis’ History of the United States in Vol. 5, pages 1396 to 1399 and there find a confirmation of all that Claud Bowers stated in his book, “The Tragic Era.” Nor do you have to look at Mississippi or South Carolina. Take any county where the Negro was in the majority and had fallen under the leadership of a carpetbagger of the North and a scallawag of nearby. The Negro forgot his former loyalty. He was now taught and led to believe that the white man had been his oppressor and it was now his turn to take charge. Take one colored county in East Texas. Take the old county of Harrison in which we were bom and in which we practiced law for many years. The Negroes there were in the majority. There, designing leaders, mostly white, used the Negro and used him to the detriment of all concerned. They sent a Negro by the name of David Abner to the State Senate of Texas. They sent another Negro to the House of Representatives, but the places on the Commissioners Court and the county judgeship, the county treasurer and other places that handled money and the tax money were given to the unscrupulous white leaders. In a little while the county’s credit was gone. A juror’s pay would not buy him a sandwich. The county script was worthless. The T&P Railroad was being built west from Marshall at that time. A Moses as we might call him now appeared in the person of a Yankee general, a prominent engineer known over the country as General Dodge. I have seen his picture and his aides framed like Lee and his generals or Grant and his. I once had one of his pictures which was presented to the late president of the Texas and Pacific Railroad. General Dodge and Edmund Key, President of the First National Bank, R. P. Littlejohn, J. F. Rosborough, Joe Lake, Amory Starr and some 15 of the white citizens held a meeting. Something must be done to save the county’s credit. The railroad was particularly interested. The county had voted a major bond issue as a promise to the T&P Railroad to locate its shops and general offices in Marshall. These bonds of course would be worthless at maturity. Incidentally, I have one of those bonds which was subsequently paid and long after its liquidation came to me as a souvenir. These men formed a group which afterwards was known as the Citizens Party. They made up a list of candidates for the county offices and drafted men to run. They recognized that they were in the minority but they extended their group into other groups throughout the county and as the election approached they persuaded some of the oldtime darkies to stay away from the polls or go along with them and in some other cases they probably spread fear which would have involved them if we had had at that time a civil rights election law. The Citizens Party ticket won. The county taxes were properly allocated and apportioned. The credit went back up. The juror could draw his pay at face value. The T&P got its bonds paid in full and that though now more than 75 years ago has continued. It affected the entire stamina of the county’s economic and political life. There has never been a bank failure in Harrison County. There was never a time in any of the panics that any depositor could not go to the bank and draw his money. And in 1908 when the banks over the nation closed the Marshall banks not only paid all depositors but took care of the payroll of the T&P Railroad from Marshall on to El Paso and when it was all over they had more money than when it started, confidence in the stamina of the banks and in the population around them.

Now during this tragic era the account of the massacre in Haiti was still fresh in the minds of people then living. A magnificent white civilization in the West Indies that produced women like Empress Josephine, Napoleon’s wife, passed under slave control, particularly on the Island of Haiti. Instead of integrating or amalgamating the races the Negro decided he would take over and he did. Every man, woman and child of the white race was massacred. Tradition tells of two little girls that were wrapped in unstripped sugar cane, smuggled on a ship and sent to New Orleans as the sole survivors of a magnificent white population.

In certain communities there were reports of a racial war about to start. It terrorized the whites. Nearly every plantation had a hunter’s horn and the agreement was that that horn would be sounded so many times when the hour approached and the white population would assemble at a suitable place to defend themselves or die in the attempt.

All these things have been more or less forgotten and the people have tried to forget them.

There has through all the ages of history, however, existed an element in every race, in every sect and in every group to abuse power. And in the dark belt counties of the South there will come fear that into the midst of the Negro population there will again appear designing parties from afar and tell him that the power is his and to take over the county. There will be a strip so the Southerner fears of amalgamated spots stretching from the Potomac to the Brazos. From these counties many whites will remove and many unscrupulous whites for the sake of gain and power will associate themselves with the Negro to run the politics of the county. Maybe these things won’t occur, but if a population in great degree feels that that may occur it constitutes a problem to be dealt with and to be dissipated. History does repeat.

Home Rule — That Boon of Local Self-Government

When a national power by force moves in upon a locality in disregard of the constitution as long understood and laws of a state and ordinance of a city acting without the consent of the governed and thus arbitrarily overturns a social order, a usage and tradition of its people, it can but wound the pride of such people. The Declaration of Independence demands law by the consent of the governed and such indeed was the life long slogan of Woodrow Wilson. Lincoln’s greatest effort, other than his Gettysburg address, was that in which he plead for the universal reverence of the law. A people ruled by law made without their consent are not a contented people. We forced national prohibition upon some states and localities. Under the leadership of F.D.R. we saw our mistake and repealed it in favor of local option.

Local option applied in this case would save our people of heartaches and discord.

Concede if we must that such a course be for our betterment, yet we must agree that the adjustment when amicably made will require less time than would a law made without their consent and which they had not helped to make.

Had we a world government which would be a grave mistake America would be standing out as a lone state begging for local self-government.

We did not, years ago, enact the Chinese exclusion law because of hate of such learned men as Confucius, Li Hung-Chang or Chiang Kai-Shek. But for the protection of such laws we would have been subjected to such a flood of immigration that we would have become a minority people in our own country.

A law for the integration of schools and consequent amalgamation of peoples was not made by the people of Texas nor its application invited by the schools of this city. Our people feel that it comes by remote control at the behest of good-meaning people who know not what they do and who refuse to profit by man’s experience handed to us through the pages of history.

Marcus Aurelius, one of the few statesmen and philosophic rulers of the world-wide Roman Empire, proclaimed to the cities of the east, the west, the north and the south the great boon of local self-government. Prosperity and patriotism sprang into existence to a degree previously unknown.

When our fathers compelled King John to sign the Magna Charta they were mindful of the little subdivision of Wales and they wrote in Section 56 that where a Welshman had a land suit he might have it tried before a Welsh judge.

The original Thirteen Colonies were in the main settled each without reference to the other. They were Puritan, Baptist, Quaker, Catholic, Episcopal, Huguenots and then the poor in Georgia. They existed thusly for more than a hundred years when the Constitution was submitted to them. Almost every colony drafted its own bill of rights. And it is worthy of note that practically every colony made the right of local self-government first of all. James Madison collated these and condensed them into one Bill of Rights. And thus into the American Constitution came the right of local self-government, due largely to men like Patrick Henry and Samuel Adams. The states were here before the Federal government. King George surrendered his sovereignty to the states, not to the nation. So the crowning item of the Constitution is: Article 10 of the Bill of Rights reads:

“The powers not delegated to the United States by the Constitution nor prohibited by it to the States are reserved to the States respectively or to the people.”

Patrick Henry, Alexander Stephens and John C. Calhoun stand forth as champions of states’ rights or local self-government, but when they died states’ rights as written in the Constitution did not die with them. The most powerful and convincing argument in support of local self-government was yet to be uttered on March 2, 1930 by the Governor of New York. His words were so apropos to the present situation that we adopt them as a part of our own reasoning:

“I have been asked to talk about the respective powers of the National and the State Governments to rule and regulate, where one begins and the other ends. * * *

“As a matter of fact and law, the governing rights of the States are all of those which have not been surrendered to the National Government * * * the conduct of public utilities, of banks, of insurance, of business, of agriculture, of education, of social welfare and of a dozen other important features. In these, Washington must not be encouraged to interfere.

* * * * * *

“ * * * It was clear to the framers of our Constitution that the greatest possible liberty of self-government must be given to each State, and that any national administration attempting to make all laws for the whole Nation, * * * would inevitably result at some future time in a dissolution of the Union itself.

“Let us remember that from the very beginning differences in climate, soil, conditions, habits and modes of living in States separated by thousands of miles rendered it necessary to give the fullest individual latitude to the individual States. * * * It must be obvious that almost every new or old problem of government must be solved, if it is to be solved to the satisfaction of the people of the whole country, by each State in its own way.”

New York by the repeal of the 18th Amendment took control of its whiskey traffic. Texans feel that they can control their schools as well as New York can her whiskey.

Local self-government, the right of a state to regulate its whiskey traffic, the right of a state to operate its public schools, the right of the state to expend its tax money with the consent and approval of its own people, has been so well and so long recognized that it has become in the minds of the people an unalienable right, a part of their civic and political existence. Integration by force annuls these rights and is one of the hurdles that must be overcome to make it acceptable without protest. And when the general public fully realize that;, amalgamation of necessity will follow the protest will become even more vigorous and violent from both races.

Racial Integrity in History

Racial integrity is a God-given right that has served civilization on two great historic occasions.

The Hebrew and the Egyptian lived side by side along the Nile in the land of Egypt for 400 years and preserved their racial integrity. Moses became prominent in the land of Egypt, commanded the army which expelled the Ethiopian from the country and in making peace he married Tharbis, the daughter of the Ethiopian king. Tharbis either died or returned to her native Ethiopia, but long after Aaron and Miriam, the brother and sister of Moses, spoke derogatorily of his having married an Ethiopian woman though she was the daughter of a king.

This matter might seem insignificant, but the controversy shows that Aaron and Miriam expected their race to stay pure and they didn’t approve the Ethiopian marriage. If the Ethiopians or even the Egyptians and the Hebrews had integrated and amalgamated during these 400 years there would never have been an exodus. There would never have been Ten Commandments handed down to their leader from Mt. Sinai. There would never have been a Jewish religion that survived to be the parent of Christianity. The racial integrity of the Hebrew gave us the Old Testament, the Law and the Prophets and without which it would not have been. Who would even though he could turn back the pages of history and destroy a civilization that gave to the world the Ten Commandments and the people that first observed them and kept them secure in the Ark of the Covenant as a guide for the generations to come?

But another threat of integration by force more terrific than the first now con fronted these people. It came to them more than a thousand years later. When Alexander the Great had conquered the Persian Empire and died his four generals divided the spoils and set up kingdoms for themselves. Egypt passed to the Greek house of Ptolemy. The core of the old Persian Empire passed to An-tiochus. His realm included the ancient lands of Assyria, of Babylonia, of Persia, of Media, of Phoenicia, of Syria, of Arabia, Palestine and others. He built him a great city which he named Antioch. He conceived the idea of Helleniz-ing the people of all of his consolidated kingdoms, and he issued the decree that they should have one tongue, one religion and that that should be the Greek language, literature and government. First Maccabees, Chapters 1 and 2. He succeeded to the extent that even the New Testament some time after was written in the Greek language. But when he undertook to force the people of Judea into abandoning their religion and the traditions of Abraham and the law of Moses a resolute group headed by Judas Maccabeus, his brothers and nephews, presented an organized resistance. The army of the great empire of Anti-ochus came down upon them. Judas Maccabeus showed himself to be a general of the Stonewall Jackson type. He defeated the army of the Greek-Syrian empire. He defeated the next army and the next. He and his brothers and his nephews taking and assuming the title of the high priest instead of calling themselves kings or emperors restored their rule over the land almost to the extent of the ancient empire of Solomon and David. Among their most enduring work was the establishment of a colony on the shores of Lake Galilee. In this colony Jesus Christ preached His Sermon on the Mount. He performed His first miracle at Cana when he turned the water into wine. In this colony He chose His twelve disciples. These disciples spread the doctrine of love and peace and good will toward men throughout the universe and gave us Christian civilization.

Had Antiochus succeeded in forcing integration and amalgamation on the peoples of his empire and particularly on Palestine, there would have been no New Testament. There would have been no Christian civilization. We have before us in the pages of history the countries that have amalgamated and their present status, the peoples who refused to amalgamate and the ideals and concepts that they have bequeathed to the civilized world.

Again we refer to the wisdom of Booker Washington. In his speech at Wiley University delivered some more than 40 years ago he portrayed a racial relationship that had been in existence then since Reconstruction and has continued on down to the present era. He had a large Negro audience and there were many influential whites to listen. Said he, there is not a Negro in all the South-land who hasn’t already picked out some influential white neighbor or citizen to whom he expects to go if he should get in trouble. And when he puts his hat under his arm and approaches this white friend he gets what he came for whether it be a counsellor, an adviser or if need be a champion. It was this thought that Garfield had in mind when he said his idea of a school was the boy and the professor sitting together on a log. For this period from the end of the tragic era of Reconstruction down to this date, a period of approximately 80 years, the Garfield idea and the Booker Washington thought has guided the colored race of the South. The influential white man was his leader and the colored man was the boy or his ward and friend.

The Negro early showed the ability and power of discrimination. He recognized the man that was able to do things. He recognized the man of influence. He perhaps sought out the son of his former master. If not, then the son of some other man’s former master and laid before him his case. He got sound and disinterested advice. And it tended to make the two races interdependent as it were upon the other. It was at least an outstanding attempt of racial coex istence. The Southern Negro feels kindly to his white neighbor and that feeling is fully reciprocated. Under the guidance and leadership of this influential white neighbor the Southern Negro is freer from wrongdoing than his brethren who have strayed into other fields.

Integration Without Local Approval

Even with efforts made in good faith national integration by force may not after all integrate the races.

National prohibition did not prohibit and the 18th Amendment had to be repealed.

We are fully conscious under the Brown decision that it is the duty of the school board and the duty of the court to throw no blocks in the way of an ultimate integration, but in doing this we think that a reading between the lines of the Brown decision, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083, implies that the integration shall be so guided by local authorities as to accomplish the least confusion and injury to the education of the schools, and certainly not be carried to the extent of creating confusion and disorganization.

We consider the effort as an experiment although it may be as Herbert Hoover called it, a noble experiment yet to be tried.

The effort of the District of Columbia holds out little encouragement. There integration has been on trial for some four or five years during which time the colored enrollment has increased by 31,-000 pupils and the white enrollment has decreased 17,000. Taking individual schools of the District of Columbia we note the change. At the beginning of integration the Roosevelt High School enrolled 634 whites and 518 Negroes. In 1959 the enrollment was 56 whites and 887 Negroes. In the McFarlin Junior High School at the beginning of integration there were 646 whites and 641 Negroes. In 1959 there were 106 whites and 1,217 Negroes. With the beginning of integration the Bennings School had 218 Negro students and 132 whites. In the last enrollment there were 628 Negroes and only 6 whites.

In the Davis School at the beginning of integration there were 139 Negroes and 589 whites. The last enrollment of' the Davis School was changed to 1,078 Negroes and only 12 whites.

Fifty-eight schools grouped at the beginning of integration were 98 per cent colored. Integration has been in effect almost five years and these same 58 schools have 36,138 colored students and only 599 white.

An important thought to be carefully weighed is that the rapid readjustment of the school enrollment can hardly take place without creating confusion and loss to the students’ advancement. Take the Davis School for instance and each year there would be 100 less white and 100 more Negroes, the student body constantly changing. Another noteworthy fact is that since integration in the schools 142,000 white people between the ages of 18 and 45 have moved from the District of Columbia, largely of course into Maryland and Virginia.

The District of Columbia does not by any formal legislative enactment provide for the placement or transfer of pupils from school to school, but it is difficult for any school management to deny this privilege. And in fact such law has been upheld by our courts. Carson v. Warlick, 4 Cir., 238 F.2d 724; Shuttlesworth v. Birmingham Board of Education of Jefferson County, Alabama, D.C., 162 F. Supp. 372, affirmed by per curiam opinion 358 U.S. 101, 79 S.Ct. 221, 3 L.Ed. 2d 145. This right of tranfer and placement of students has resulted in the transfer of whites from school to school and blacks from school to school until in many schools integration is now practically nonexistent. Certain schools in the upper corner of the District are almost entirely white and the vast majority of the balance of the schools are becoming almost black.

To keep a school integrated without the approval of the parents and stud'ents is more or less like withholding the law of gravity, for water will seek its level. And although they may have the law, sooner or later the blacks will be together and the whites together. And though we may enact integration here in Dallas the school authorities can scarcely deny a petition for transfer and we may soon find the black schools all substantially black and the white schools substantially white. But in the midst of this trial and experiment the cause of education is bound to suffer.

The present problem could be solved by application of Governor Roosevelt’s conception of local self-government which is now not possible under the Brown decision. We have had this local self-government in which the races here at Dallas have been given equal opportunities for more than 60 years. Local self-government therefore as a remedy is denied.

Then we come to the Booker Washington formula of solving the problem by the excellence of the individual which is one of the most rational of all plans. The instantaneous integration by force does not leave possible the achievement of the individual by the rule of excellence or excelling the other fellow.

A third formula is suggested by the theory of Thomas Jefferson and the lifetime slogan of Woodrow Wilson: Rule by consent of the governed. Here we think is the only formula that should be used until integration is fully tried.

One plan suggested is the integration by degrees starting in grade 1 and then in grade 2, 3, etc., in successive years. In this way in 12 years there would be complete integration. One advantage of this course would be a probable lessening of conflict and discord among the larger students. In this manner certain schools in Washington according to their teachers often called police to help hold order. Such procedure would be averted by this plan if put in effect. There will however almost certainly arise a problem by this plan that is bound to defeat it as the years progress and that is in the language of Dr. Nev-ins: amalgamation will inevitably follow, and in 12 years adult pupils will be channeled together. An old sage once remarked that your children will marry whomever they associate with and our army life is proving that fact. Almost constantly we naturalize the wives of soldiers in the American army which has been distributed almost around the globe and these wives come from almost every clime and every race. Not many Negroes have come but manifestly our Negro soldiers abroad have married white women and under competent advice no doubt they have taken their wives to states that allow intermarriage.

This plan of starting with the lower grade and in 12 years completing the integration is in all probability the most direct and surest route to amalgamation which in the long run is the most objectionable of all features of integration.

Integration Rushes on to Amalgamation

There are those who feel that integration can be without the amalgamation of the two races and who would favor integration but do not look with favor upon amalgamation.

A well-recognized author has said: “Two currents cannot flow side by side-down through the centuries without ultimately becoming one.”

Since most of the whites in the South desire to maintain their racial integrity, they would for that reason alone oppose-integration in the schools. Dr. Allen Nevins, historian and author, winner of the Pulitzer Prize and for 30 years professor of history at Columbia University on this subject says:

“At first the fusion will be imperceptible ; then it will be perceptible but slow; then it will move with a rush.

“I could cite a dozen analogies from history to prove that such a process is inexorable, irresistible.

“Any sociologist could cite a dozen reasons why it is inevitable.”

The white Southerner is proud of the fact that he has many Negro citizens among his neighbors who also have racial pride and do lot look forward with any special desire to amalgamation of the two races. But an integration in the schoolroom taking the small child in grade 1 on up until he finishes high school places the current side by side in a closer channel than it has heretofore been.

Fear shapes the thought of people and has through the ages. The fears and apprehensions of a people cannot be overlooked. The Anglo-Saxon race anywhere it is found like the Jewish race favors racial integrity. And this is true of many of the Negro race. Any people that so believe and insist upon such has the right and a privilege of passing racial purity to future generations. 2 It is the belief of many thousands, no doubt the vast majority of the people in the Southern States, that racial integration will be followed by racial amalgamation. And in this particular they look for precedents, precedents that show that such has not helped either race.

Take Southern Europe and Northern Europe. In Northern Europe the different tribes and nationalities have married and inbred into their own tribes and kindred tribes — what the cattleman would call line breeding which makes purity of race. In breeding a cow by line breeding and care you create a valuable animal, sometimes worth thousands of dollars. So line breeding if racial integrity is to be preserved is something to be protected. In Southern Europe instead of line breeding there has been cross breeding. During the days of Roman power her conquering armies brought in many captured people and made slaves of them, but they didn’t stop with that. They sent expeditions into Africa and Asia to catch and kidnap large numbers and subject them to slavery. Myers’ Historic Series says that they virtually depopulated vast areas, took the people without their consent and subjected them to slavery. These slaves became so numerous in Southern Europe, particularly in Southern Italy, that one owner would sometimes possess 20,000 slaves. These slaves rebelled at their condition, but Roman armies would be sent to suppress them. When the Roman military power collapsed the slaves were left to their own initiative. They integrated, intermarried and produced an elaborate system of cross breeding.

Those who favor racial integrity do not look with favor upon the result. We do not say that the people of Sicily and the fringes of the Mediterranean are not equal to the people of the northern belt of the continent, but we do say that they are not superior. We will not adopt the appraisal of Lord Nelson nor will we refer to the unkind terms, because these people too have made their place under the sun, but we do say that they have not surpassed in any way the Finns, the Swedes, the Danes, the Scots or the other racial tribes of the northern belts.

Integration by Consent

Thomas Jefferson, Woodrow Wilson and all the great writers and champions of free government have emphasized government by consent of the governed. If we must have integration, then instead of having it by force may it not be by consent.

We have those among the whites of our City of Dallas who favor integration and are fairly enthusiastic in favor of it. That number is not so great, but they are here. We have some of our Negroes who are being used and are in good faith no doubt plaintiffs in this litigation. We don’t think they represent a majority of the Negro population. But let’s give integration in Dallas a chance that it is not having elsewhere.

Some educator has advanced the following plan which has an appeal: That the school authorities set aside schools within the city limits in which all those of either race who desire integration may be enrolled by placement arrangement and transportation given them to that school and that other like schools for different grades be set aside maybe elsewhere in the city. Since the children would be there together by their parents’ consent there is at last one reason why good will would prevail in these schools that might not prevail in schools where children are brought together by force and without the approval of their parents.

If the plan proved popular, then additional integrated schools would through the years follow, not more than 12 years.

This plan would not put Dallas in the attitude or in the same channel that the District of Columbia has been going through and yet it would give a test of the success or failure of integration. There is at present a good feeling among the two races in Dallas, somewhat impaired by the recent agitation over the nation, but we have not so far had any open eruption and good will is perhaps here to a better degree than at many other places.

If the end of integration is so desirable, then why not do it in the way that our fathers had in mind when they gave us law by consent of the parties affected?

In view of the fact that the plan submitted by the Board will manifestly lead to an amalgamation of the races and as this becomes more apparent that children will be transferred out of mixed schools either to white schools or to black schools as has been the experience in the District of Columbia, we feel that the School Board should give its plan some further consideration and we will postpone this further hearing for 20 days, up until the 14th of June, to give the Board an opportunity to work out a plan or program leading to integration that will not provoke a general shifting and transfer of the student body among the schools and one that will not lead to the amalgamation of the two races which is undesirable. Another plan might be by starting in certain wards and spreading it gradually rather than starting in grade 1 over the whole city and gradually up the grades.

We are deeply conscious that you have a greater problem than one which may appear to the onlooker.

May an all-wise Creator guide you.

Supplemental Opinion.

On this the 4th day of June, 1960, there came on to be further considered in Cause No. 6165 the case of Hilda Ruth Borders et al. v. Dr. Edwin L. Rippy et al., being known as the school integration case.

The plaintiffs have filed a contest on the amended plan of the School Board. The School Board has replied, Sections 2 and 3 thereof reading as follows, which is very much in line with the Court’s thinking on this subject:

“Sec. 2 They are strongly of the opinion and belief that a great many of the parents and children in the District are vigorously opposed to wholesale and complete integration, although practically all (defendants sincerely hope and trust) are determined to follow the law as laid down by the Courts, and certainly the de fendants are so moved; and such parties who are thus opposed to full integration would probably commend a plan whereby those who desire to integrate may do so, and those who are opposed might not be forced to do so. That all parents, and pupils will be canvassed and surveyed for the purpose of learning who does and who does not want integration, and thereby give all concerned what they prefer, as far as is practical and possible.

“Sec. 3. By such Plan No. 2 as set out in Exhibit ‘A’, the children would come together without any animus, prejudice, and bias, and the likelihood of violence would be practically eliminated, while otherwise forced sweeping integration in one or more grades under duress and force might be met with violent opposition; and if violence should develop, all the disadvantages experienced in Little Rock and elsewhere might occur in Dallas. Voluntary acceptance and cooperation on the part of teachers, parents and pupils offers the best probable means to avoid this undesirable result. Carried out in this manner, it offers the best way of giving to all what each person may think is best for himself.”

Since writing our former opinion we would supplement it with these following suggestions:

A complete review of the authorities bearing on this question must ultimately lead to a clearer understanding of the law and the relative fields of the school authorities and the courts. The courts all the way up and down will of necessity, under the terms of the Fourteenth Amendment as interpreted by and in the Brown decision, be limited to the mandate calling for integration. Beyond that school management will be left entirely to the school authorities.

A white school board may not refuse a colored child the right to enroll among pupils of the white race, but our judgment is that the courts will, not interfere with the arrangements of the schools so long as there is due respect for the orders of integration. And the court will not direct the school board as to what school the child may attend if the board thinks that an allocation would be helpful to the school system and even to the child himself in certain cases.

We think that these concepts are borne out in particular by certain decisions already written.

In Shuttlesworth v. Birmingham Board of Education of Jefferson County, Alabama, D.C.1958, 162 F.Supp. 372, 384, affirmed 1958, 358 U.S. 101, 79 S.Ct. 221, 3 L.Ed.2d 145, the Court held the constitutional administration of state school laws does not rest with the courts, but “the responsibility rests primarily upon the local school boards * * *.”

In this case the court regarded the following criteria as constitutionally approved in determining pupil placement:

“ ‘In the assignment, transfer or continuance of pupils among and within the schools or within the classroom and other facilities thereof, the following factors and the effect or results thereof shall be considered, with respect to the individual pupil as well as other relevant matters; available room and teaching capacity in the various schools; the availability of transportation; the effect of the admission of new pupils upon established or proposed academic programs; the suitability of established curricula for the particular pupil; the adequacy of the pupil’s academic preparation for admission to a particular school and curriculum; the scholastic aptitude and relative intelligence or mental energy or ability of the pupil; the psychological qualification of the pupil for the type of teaching and association involved; the effect of admission of the pupil upon the academic progress of other students in a particular school or facility thereof; the effect of admission upon prevailing academic standards in a particular school; the physical effect upon the pupil of attendance at a particular school; the possibility or threat of friction or disorder among pupils or others; the possibility of breaches of the peace or ill-will or economic retaliation within the community; the home environment of the pupil; the maintenance or severance of established social and psychological relationships with other pupils and with teachers; the choice and interest of the pupil, the moral conduct, health and personal standards of the pupil; the request or consent of parents or guardian and the reason assigned therefor.’ ”

In Carson v. Warlick, 4 Cir., 1956, 238 F.2d 724, 728, Chief Judge Parker said:

“Somebody must enroll the pupils in the schools. They cannot enroll themselves; and we can think of no one better qualified to undertake the task than the officials of the schools and the school boards having the schools in charge. It is to be presumed that these will obey the law, observe the standards prescribed by the legislature, and avoid the discrimination on account of race which the Constitution forbids. Not until they have applied to and have failed to give relief should the courts be asked to interfere in school administration.”

In this case Judge Parker approved the following standards in the North Carolina Pupil Enrollment Act, G.S.N.C. § 115-177:

Pupils shall be enrolled “so as to provide for the orderly and efficient administration of such public schools, the effective instruction of the pupils therein enrolled, and the health, safety, and general welfare of such pupils.”

The School Board would bear in mind that the judge of this court acts with them more in an advisory capacity than in a mandatory degree. His rulings will disagree with the School Board only when they transgress the orders of the law as interpreted by the courts. He did not agree to the plan originally advanced of integrating only with grade 1. One reason therefor would be that the plaintiffs in the case were already past grade 1 which would amount to a total denial of their plea. The plan that you now propose would enable them to have integration in their school days.

We are conscious that when a change in the school system is so sweeping and revolutionary in its character for it to set aside the constitution of even the State of Texas that you may as a School Board feel somewhat uncertain not only as to your duties but as to the privileges allowed you by the law. The School Board has able attorneys which can advise you. I will say to the credit of the members of this Board and also to the plaintiffs that neither side has ever approached the Court or made any suggestion to him as to what his ruling should be.

As a School Board you are still in charge of the schools to arrange and operate, them as you have always done with one notable change: You can make no discrimination between children because of their race or color.

I call your attention therefore to some things that you may not do and then to some that you may do.

1. You cannot refuse to enroll a colored child like the plaintiff in this case if she offers to be enrolled in a white school. No pupil, however, may select the school that he would attend.

2. You cannot refuse a white child offering to be enrolled in a black school, because the law will work both ways.

3. You cannot do as you would prefer to do, but you must do as the law commands you to do.

4. You cannot because of race or col- or discriminate between children.

5. You will not go out and draft or force children of either race to come in and be integrated. They must offer and ask.

On the other hand:

1. You may in the operation of your schools assign the school to the child which is best suited under all the circumstances, taking into consideration only the things that are best for the child and at the same time the best interest of the entire school system.

2. A white child that makes himself obnoxious in an integrated school may be under the law of placement put in another school to avoid trouble.

S. So may an obnoxious or disagreeable Negro child be removed from an integrated school in order to avoid trouble.

4. Without purposely and intentionally discriminating between the races you may for any. good cause or reason assign pupils to schools other than that nearest to them. Thus, to illustrate, if some pampered white boy, growing up without ever having been controlled or denied, enters an integrated school and by reason of his selfish propensities, pride or vanity or racial dislike creates disturbance he may be transferred to another school. Likewise, if an overgrown Negro boy in an integrated school should be by premature growth inclined to sex and should write verses on the blackboard of an obscene character designedly for the white girls to read or should make improper approaches to them so as to provoke trouble in the school, he should be assigned to a school where the situation is different.

These precautionary measures are allowed under the law of placement for the well-being of the entire system.

Not only in our schools but in our entire public relations should the two races be tolerant of each other and when exasperated from something that ought not to have happened just to consider something that’s good. Just in the last few days, for instance, we have noted in the press dispatches where Joe Louis, former world heavyweight champion, was invited to participate in an organization which would aid in assembling and conducting Negro tourists to Havana, Cuba. This purpose may have been not only to bring some money to Cuba, but to give the visitors a touch with the communistic system of government in Cuba. Joe Louis having his attention called to that said if this was the purpose of it, then he would have nothing to do with it, as he was not ready to give up his American citizenship and the freedom of its institutions.

We can likewise think of the Negro woman who as foreman of a jury convicted the 11 communists in New York City. And there is no occasion anywhere among any people that there might not be something pleasing considered.

We think that the system you have adopted will not only produce or at least help to secure peace and good will in the school system of Dallas, but will inaugurate a system that will stand the test of the law.

1 . In a knowledge of statecraft and foresight, or as we might term it foreseeability, the Colony of Virginia has probably surpassed every nation or locality with the possible exception of Athens alone. There was Washington without whom there would have been no United States. There was Madison, the father of the Constitution itself. There was John Marshall, the outstanding, great Chief Justice of all time. There was Thomas Jefferson, the father of democratic ideals of government. There were the Lees who for seven generations, according to John Adams of Massachusetts, produced a continuing line of great Americans, and this was just down to the time of the Revolution. In moments of calm and deliberate thought our nation has often profited most by the wisdom of these men.

The action of the Virginia Colony in 1772 is itself unusually interesting as follows:

“Wednesday, the 1st of April, 12 George, HI, 1772.

“Most Gracious Sovereign,

“We, your Majesty’s dutiful and loyal Subjects, the Burgesses of Virginia, now met in General Assembly, beg Leave, with all Humility, to approach your Royal Presence.

“The many Instances of your Majesty’s benevolent Intentions and most gracious Disposition to promote the Prosperity and Happiness of your Subjects in the Colonies, encourage us to look up to the Throne, and implore your Majesty’s paternal Assistance in averting a Calamity of a most alarming Nature.

“The Importation of Slaves into the Colonies from the Coast of Africa hath long been considered as a Trade of great Inhumanity, and, under its present Encouragement, we have too much Reason to fear will endanger the very Existence of your Majesty’s American Dominions.

“We are sensible that some of your Majesty’s Subjects in Great-Britain may reap Emoluments from this Sort of Traffic, but when we consider that it greatly retards the Settlement of the Colonies, with more useful Inhabitants, and may, in Time, have the most destructive Influence, we presume to hope that the Interest of a few will be disregarded when placed in Competition with the Security and Happiness of such Numbers of your Majesty’s dutiful and loyal Subjects.

“Deeply impressed with these Sentiments, we most humbly beseech your Majesty to remove all those Restraints on your Majesty’s Governors of this Colony, which inhibit their assenting to such Laws as might check so very pernicious a Commerce.

“Your Majesty’s antient Colony and Dominion of Virginia hath, at all Times, and upon every Occasion, been entirely devoted to your Majesty’s sacred Person and Government, and we cannot forego this Opportunity of renewing those Assurances of the truest Loyalty, and warmest Affection, which we have so often, with the greatest Sincerity, given to the best of Kings, whose Wisdom and Goodness we esteem the surest Pledges of the Happiness of all his People.”

A photostatic copy of the document addressed to King George is here before us, signed by Peyton Randolph, Speaker.

2 . No one recognized better than President Lincoln, the emancipator, the problem of the two races.

In an address to a large delegation of Negroes who were already free, August 14, 1862, when a measure was being considered of aiding the Negroes who wanted to go to other countries, particularly to Liberia in Africa, Mr. Lincoln made the following observation to the assembled group:

“You and we are different races. We have between us a broader difference than exists between almost any other two races. Whether it be right or wrong, I need not discuss, but this physical difference is a great disadvantage to us both, * *

“ * * * it is better for us both therefore to be separated.”

It will be remembered that President Monroe and Francis Scott Key and others interested themselves in forming a settlement of the free Negroes of America on the African coast. The little nation of Liberia is the result, the capital, Monrovia, being named for President Monroe. The war interrupted the program although Mr. Lincoln apparently favored it. Had it been carried out we would have seen perhaps more than 50 years ago a great English speaking government of black men in Africa, the descendants of former American slaves. The point is that Mr. Lincoln recognized the problem of handling the question in no better way than separation.