McNeese v. Board of Education for Community Unit School District 187 Cahokia Illinois/Dissent Harlan

Mr. Justice HARLAN, dissenting.

In Burford v. Sun Oil Co., 319 U.S. 315, 317-318, 63 S.Ct. 1098, 1099, this Court said:

'Although a federal equity court does have jurisdiction of a     particular proceeding, it may, in its sound discretion,      whether its jurisdiction is invoked on the ground of      diversity of citizenship or otherwise, 'refuse to enforce or      protect legal rights, the exercise of which may be      prejudicial to the public interest'; (citing United States v.      Dern, 289 U.S. 352, 360, 53 S.Ct. 614, 617, 77 L.Ed. 1250)      for it 'is in the public interest that federal courts of      equity should exercise their discretionary power with proper      regard for the rightful independence of state governments in      carrying out their domestic policy.' *  *  * (Citing      Pennsylvania v. Williams, 294 U.S. 176, 185, 55 S.Ct. 380, 79      L.Ed. 841.) Assuming that the federal district court had      jurisdiction, should it, as a matter of sound equitable      discretion, have declined to exercise that jurisdiction      here?'

This wise approach has been followed by the lower federal courts in 'school segregation' cases (see, e.g., Carson v. Board of Education of McDowell County, 4 Cir., 227 F.2d 789; Carson v. Warlick, 4 Cir., 238 F.2d 724; Covington v. Edwards, 4 Cir., 264 F.2d 780; Holt v. Raleigh City Board of Education, 4 Cir., 265 F.2d 95; Parham v. Dove, 8 Cir., 271 F.2d 132; Shepard v. Board of Education of the City of Englewood, D.C., 207 F.Supp. 341), and more than once this Court has refused to interfere (see Carson v. Warlick, supra, cert. denied, 353 U.S. 910, 77 S.Ct. 665, 1 L.Ed.2d 664; Holt v. Raleigh City Board of Education, supra, cert. denied, 361 U.S. 818, 80 S.Ct. 59, 4 L.Ed.2d 63). For several reasons I think the present case is peculiarly one where, as was said in Burford (at p. 334, 63 S.Ct. at p. 1107), 'a sound respect for the independence of state action requires the federal equity court to stay its hand.'

1. It is apparent on the face of the complaint that this case is quite atypical of others that have come before this Court, in that the Chenot School's student body includes both white and Negro students-in almost equal numbers-and in that none of the petitioners (or others whom they purport to represent) has been refused enrollment in the school. The alleged discriminatory practices relate, rather, to the manner in which this particular school district was formed and to the way in which the internal affairs of the school are administered. These are matters in which the federal courts should not initially become embroiled. Their exploration and correction, if need be, are much better left to local authority in the first instance.

2. There is nothing that leaves room for serious doubt as to the efficacy of the administrative remedy which Illinois has provided. (The text of the statute is set forth in the Appendix to this opinion.) The fact that the Superintendent of Public Instruction himself possesses no corrective power and that he can only 'request' the Attorney General to enforce his findings by appropriate court proceedings does not, in my opinion, leave the administrative proceeding sanctionless (compare United States Alkali Export Assn. v. United States, 325 U.S. 196, 65 S.Ct. 1120, 89 L.Ed. 1554), or, as in Lane v. Wilson, 307 U.S. 268, 59 S.Ct. 872, 83 L.Ed. 1281, serve to remove this case from the 'exhaustion' requirements of Burford. If the Superintendent refuses to activate the Attorney General, his decision (as with a contrary one) is subject to judicial review. It is not suggested that the Attorney General could not also be compelled to act if he improperly refused to do so. And it must of course be assumed that these two responsible public officials will fully perform their sworn duty. Moreover, the terms of the statute itself which, among other things, provides for the use of compulsory process, strongly attest to the fact that the administrative remedy was intended as serious business and not as an exercise that might abort before fulfillment.

Nor can this administrative remedy otherwise be regarded as deficient. The fact that it takes a minimal number of school district residents to initiate a complaint before the Superintendent can hardly be deemed an untoward or unduly burdensome requirement. And the proceeding surely finds a strong practical even though 'indirect sanction' (ante, p. 676) in the power of the Superintendent at least to make it more difficult for a school, guilty of racial discrimination, to obtain state financial aid-either by revoking 'recognition' of the school district (ante, p. 675) or, as suggested to us by respondents' attorneys, by refusing to certify such a school for state aid.

3. Finally, we should be slow to hold unavailing an administrative remedy afforded by a State which long before Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873, had outlawed both by its constitution and statutes racial discrimination in its public schools, and which since Brown has passed the further implementing legislation drawn in question in this litigation (Appendix). For myself I am unwilling to assume that these solemn constitutional and legislative pronouncements of Illinois mean anything less than what they say or that the rights assured by them and by the Fourteenth Amendment will not be fully and promptly vindicated by the State if petitioners can make good their grievances.

I would affirm.

APPENDIX TO OPINION OF MR. JUSTICE HARLAN.

Section 22-19 of the School Code of Illinois provides:

'Upon the filing of a complaint with the Superintendent of     Public Instruction, executed in duplicate and subscribed with      the names and addresses of at least 50 residents of a school      district or 10%, whichever is lesser, alleging that any pupil      has been excluded from or segregated in any school on account      of his color, race, nationality, religion or religious      affiliation, or that any employee of or applicant for      employment or assignment with any such school district has      been questioned concerning his color, race, nationality,      religion or religious affiliation or subjected to      discrimination by reason thereof, by or on behalf of the      school board of such district, the Superintendent of Public      Instruction shall promptly mail a copy of such complaint to      the secretary or clerk of such school board.

'The Superintendent of Public Instruction shall fix a date,     not less than 20 nor more than 30 days from the date of the      filing of such complaint, for a hearing upon the allegations      therein. He may also fix a date for a hearing whenever he has     reason to believe that such discrimination may exist in any      school district. Reasonable notice of the time and place of     such hearing shall be mailed to the secretary or clerk of the      school board and to the first subscriber to such complaint.

'The Superintendent of Public Instruction may designate  an assistant to conduct such hearing and receive   testimony concerning the situation complained of. The  complainants may be represented at such hearing by one   of their number or by counsel. Each party shall have the  privilege of cross examining witnesses. The  Superintendent of Public Instruction or the hearing   officer appointed by him shall have the power to   subpoena witnesses, compel their attendance, and require   the production of evidence relating to any relevant   matter under this Act. Any Circuit or Superior Court of  this State, or any judge thereof, either in term time or   vacation, upon the application of the Superintendent of   Public Instruction or the hearing officer appointed by   him, may, in its or his discretion, compel the   attendance of witnesses, the production of books,   papers, records or memoranda and the giving of testimony   befor the Superintendent of Public Instruction or the   hearing officer appointed by him conducting an   investigation or holding a hearing authorized by this   Act, by an attachment for contempt, or otherwise, in the   same manner as production of evidence may be compelled   before said court. The Superintendent of Public  Instruction or the hearing officer appointed by him may   cause the depositions of witnesses within the State to   be taken in the manner prescribed by law for like   depositions in civil actions in courts of this State,   and to that end compel the attendance of witnesses and   the production of books, papers, records or memoranda. All testimony shall be taken under oath administered by  the hearing officer, but the formal rules pertaining to   evidence in judicial proceedings shall not apply. The  Superintendent of Public Instruction shall provide a   competent reporter to take notes of all testimony. Either party desiring a transcript of the hearing shall  pay for the cost of such transcript. The hearing officer  shall report a summary of the testimony to the   Superintendent of Public Instruction who shall determine whether the      allegations of the complaint are substantially correct. The     Superintendent of Public Instruction shall notify both      parties of his decision. If he so determines, he shall     request the Attorney General to apply to the appropriate      circuit court for such injunctive or other relief as may be      necessary to rectify the practice complained of.

'The provisions of the 'Administrative Review Act', approved     May 8, 1945, and all amendments and modifications thereof and      the rules adopted pursuant thereto shall apply to and govern      all proceedings for the judicial review of any final decision      rendered by the Superintendent of Public Instruction pursuant      to this Section.'