Opinion
W. J. Durham, C. B. Bunkley, Dallas, Tex., U. Simpson Tate, Wewoka, Okl., Thurgood Marshall, New York City, J. L. Turner, Jr., Dallas, Tex., Robert L. Carter, New York City, Kenneth F. Holbert, Dallas, Tex., for plaintiffs.
H. W. Strasburger, Mark Martin, Dallas, Tex., for defendants.
DAVIDSON, District Judge.
We are here now faced with the mandate of the Appellate Court directing us to enter a decree setting aside the plans of the School Board of Dallas which gave the child and the parents the right of shoice along with integration and instead to enter a decree of forcible integration in disregard of the schools' plans and the constitution and laws of Texas.
Should a judge act when his conscience says no and where every sense of right and fair play says no, or should he under such conditions hold himself disqualified?
To abolish a long established social status or educational system by force is un-American. Such may be amicably done only by consent of the parties affected. The Court's decree may take effect through the office of the United States Marshal or with the soldier's bayonet, it is force just the same.
The people of Dallas by 4 to 1 majority vote stand for segregation. They have integration now not by consent, not by choice, but by force. If the medicine is bad and the result the same, what matters it to those concerned if it is given in twelve doses instead of one?
In a case as recently decided as December 8, 1960, Mallery, Judge, Wash., 357 P.2d 702, 703, in the Price v. Evergreen Cemetery Company, it said:
'This case is more significant for what it reveals, than for what it decides. It reveals an ultimate aspiration of the Negro race, * * *
'This case demonstrates that the Negro desegregation program is not limited to public affairs. The right of white people to enjoy a choice of associates in their private lives is marked for extinction by the N.A.A.C.P. Compulsory total togetherness of Negroes and whites is to be achieved by judicial decrees in a series of Negro court actions.'
This unhappy controversy is not of our making. Our white people assuredly did not seek it. Our Negro friends and citizens did not start it. It is here, here by remote origin and control, one of many suits brought throughout the South. The man from afar understands not our problems as do we. Our slogan hath ever been rule by consent of the governed. Our founding fathers could and would have solved this problem without bitterness. To them local self-government was a complete answer. They could cheerfully observe the rule they had helped to make.
Our laws are not unilateral in their operation. Where the colored child may be embarrassed and given an inferiority complex by not being allowed to sit in white classes in the school room, then in the same school room the white child through the same psychological process may be found also subject to inferiority complex by reasons of being required by force to sit in classes which neither she nor her parents desired. The rights of the one are equal to the rights of the other.
Our colored neighbor is not unlike his white brother in the love of authority and the exercise of power. We have in our land a chain of black belt counties reaching from the Potomac to the Brazos in which the blacks hold a majority vote. The denial of the right to rule or the failure of the duty to rule well will in a future day rise to a national controversy. The N.A.A.C.P. will have every reason to be in that controversy and fight that it now has in this.
When state lines are abandoned for one purpose they are broken for all purposes. We cease to be a nation of federated states but a solidified whole.
The right to local self-government is everywhere a right of free men. Crush to earth, 'twill rise again, for 'tis an inseparable part of freedom itself.
The late Justice Brandeis once declared: The most comprehensive and valued right of man is to be let alone. Olmstead v. United States, 277 U.S. 438, 478, 48 S.Ct. 564, 72 L.Ed. 944. Dallas is not being let alone. Her school system is not being let alone. The laws and constitution are not being let alone but are all changed without the consent of those who must live under them.
Movement towards social and economic equality is towards a sameness of existence. The closer we come to what people call 'one' the nearer we are to the end beyond which the excellence of achievement halts at a dead eddy.
Never have we at any time entertained one unkind thought toward the colored race. My wet nurse as a child was a Negro woman. My playfellows were often her children. She was good to me. I would not hold back her race but would give them equal opportunity with any other race in matters of choice. I would not hold them back. I would say to the colored child as I would say to the white child, hitch your wagon to a star and rise. Yes rise, rise by the course of excellence and superiority of achievement, and not by force.
Our Constitution was written to forestall unhappy conditions as that which now confronts us. When the Constitution was submitted to the several states for ratification an almost uniform protest went up from the states because it did not contain a bill of rights. Such was especially true in the states of Virginia, New York and North Carolina. The great oratorical powers of Patrick Henry seconded by the outstanding voice of George Mason almost defeated ratification in Virginia. The vote stood 189 to 179. Madison who was pushing the ratification had the backing of Washington else he would have lost. And then to succeed he promised the convention that every effort would be made to amend the Constitution with a bill of rights, and such was true of North Carolina and other states. In fact, North Carolina refused to ratify at all until the amendments were added.
When the Constitution was ratified and most of the states had asked for the adoption of a bill of rights as an amendment thereto, it is worthy of note that the first item in the proposed bill of rights coming up from each state dealt with the rights of the state of local control in language like this:
'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.'
Nowhere in the Constitution is the matter of education delegated to the Federal government. Our late President Franklin D. Roosevelt, though liberal as he was in thought, declared: 'All powers not expressly delegated to the national government still belong to the states.'
The Constitution is the compass, the rudder and the anchor of the ship of state. Without it comes tyranny or chaos. It is the citadel of the rights of free men. It must be preserved, it must be preserved as written.
The oath to uphold and defend the Constitution is made a duty of every judge of every court. The decree here entered is one of that line of decisions leveling and annulling constitutional limitation on arbitrary powers of government. It bypasses Article X of the Bill of Rights as though it had never been written. History will mark this as an epoch in the lives of the American people and particularly so as a rift in the judicial powers of our nation. Though we sign the decree as required by the mandate of our higher court, so deeply do we feel the effects upon the future we must let the record show that at least one judge would dissent.
One final word to the people of Dallas: Stand calmly by constituted authority.
To the colored man, you are fully aware of having won in the courts of the land a history-making legal battle. If it calls for a triumph, remember the precept of General Grant at Appomattox: 'Never crow over the reverses of an honorable adversary.' In our courts your lawyers will tell you never to provoke a difficulty. Sound ethics and good manners tell us not to unnecessarily provoke the ill will of those with whom we live. In this long continued trial your lawyers and your people have conducted themselves with that courteous decorum which commands the respect of the United States Court and the public. It well behooves you to help avoid such untoward scenes and conditions as have prevailed in other cities.
To the white man we would say that while every decision rendered by a Court does not become that law of the land yet if the judgment so rendered puts in motion edicts of the law and agencies of government, do not, though you disapprove, resort to violence in any form. It injures your cause. It does harm and subjects you to ultimate defeat and humiliation. Let the admonition of George Washington in his farewell address be your guide:
'Towards the preservation of government and the permanency of state it is requested that you discountenance irregular opposition to acknowledged authority.'