With All Deliberate Speed

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Although, Frankfurter told his brethren, the court had before it only five individual cases, “we are asked in effect to transform state-wide school systems in nearly a score of states,” and it was not going to be easy. First the court must define, Frankfurter wrote, exactly what the required result was. For the first time in the written discussions, the word integration was used; it has since become the heart of much of the controversy surrounding school racial problems. “Integration,” Frankfurter said, “that is, ‘equal protection,’ can readily be achieved by lowering the standards of those who at the start are, in the phrase of George Orwell, ‘more equal’.… It would indeed make a mockery of the Constitutional adjudication designed to vindicate a claim to equal treatment, to achieve ‘integrated’ but lower educational standards.”

As to the time factor, the court does its duty, he explained, “if it gets effectively under way the righting of a wrong. When the wrong is a deeply rooted state policy the court does its duty if it decrees measures that reverse the direction of the unconstitutional policy so as to uproot it ‘with all deliberate speed.’ ” This was a phrase Frankfurter had used previously in at least three decisions. Like integration, it became a controversial issue in the desegregation process.

Tentatively, Frankfurter preferred some gradual process of desegregation. “The Court does not know,” he wrote, “that a simple scrambling of the two school systems may not work. It surely cannot assume that scrambling is all there is to it. … One is surely entitled to suspect that spreading the adjustment over time will more effectively accomplish the desired end. …”

However, he warned, before the court could fashion a decree, it faced an enormous and complex fact-finding task, made more difficult by the various interpretations that could be applied to facts “different in kind than courts usually consider” and “embedded in deep feeling.”

“Physical, educational, budgetary, and time factors” must be considered; there would be problems for both teachers and students, and “problems caused by shifts in population which these readjustments may well induce.” All these must be ascertained in a complex framework where “the spread of differences in the ratios of white to colored population among the various counties in different States is very considerable.”

Awareness of these difficulties accounts for the fact that a remedy for segregated schools did not appear in the May 17, 1954, decision. The justices simply declared racially segregated schools unconstitutional, and the last paragraph of the unanimous opinion read: Because these are class actions, because of the wide applicability of this decision, and because of the great variety of local conditions, the formulation of decrees in these cases presents problems of considerable complexity. We have now announced that such segregation is a denial of the equal protection of the laws. I n order that we may have the full assistance of the parties in formulating decrees, the cases will be restored to the docket, and the parties are requested to present further argument on questions 4 and 5 [the questions of how] previously propounded by the Court for the reargument this Term.

The Attorney General of the United States as well as the attorneys general of the states requiring or permitting segregation in public education were invited to participate as amici curiae. Undoubtedly the court hoped that by inviting participation of the states—most of them southern—that permitted or required segregation, the South itself, at least on an official level, would accept the inevitability of change and join in devising an acceptable remedy.

The justices knew they had touched sensitive nerves, but they were probably not prepared for the widespread resistance their decision drew, largely in the South. Emotion outran reason; invective submerged valid legal debate. Deep South prosegregationist states such as Alabama, Georgia, and Mississippi did not accept the court’s invitation to participate in reargument lest they endow the May 17, 1954, decision with recognition. Vacationing in Massachusetts, Frankfurter mused on the problem and, in a letter to Warren, recommended that the court gather data on what “administrative, financial, commonsensical and other considerations legitimately enter” the normal school-districting process so as to have some frame of reference in dealing with southern redistricting. “The Southern States are fever patients. Let us find out, if we can, what healthy bodies do about such things in order to guard against attributing to the fever conduct and consequences that are not fairly attributable to fever. …”