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TRAMMEL v. UNITED STATES. 
 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT. 
 
 No. 78-5705.


 
 Argued October 29, 30, 1979. 
 Decided February 27, 1980.

Prior to his trial with others on federal drug charges, petitioner advised the District Court that the Government intended to call his wife (who had been named in the indictment as an unindicted co-conspirator) as an adverse witness and asserted a privilege to prevent her from testifying. The District Court ruled that confidential communications between petitioner and his wife were privileged and therefore inadmissible, but the wife was permitted to testify to any act she observed before or during the marriage and to any communication made in the presence of a third person. Primarily on the basis of his wife's testimony, petitioner was convicted, and the Court of Appeals affirmed, rejecting petitioner's contention that the admission of his wife's adverse testimony, over his objection, contravened the decision in Hawkins v. United States, 358 U.S. 74 , barring the testimony of one spouse against the other unless both consent. Held: The Court modifies the Hawkins rule so that the witness-spouse alone has a privilege to refuse to testify adversely; the witness may be neither compelled to testify nor foreclosed from testifying. Here, petitioner's spouse chose to testify against him; that she did so after a grant of immunity and assurances of lenient treatment does not render her testimony involuntary, and thus petitioner's claim of privilege was properly rejected. Pp. 43-53.

• (a) The modern justification for the privilege against adverse spousal testimony is its perceived role in fostering the harmony and sanctity of the marriage relationship. While this Court, in Hawkins, supra, reaffirmed the vitality of the common-law privilege in the federal courts, it made clear that its decision was not meant to "foreclose whatever changes in the rule may eventually be dictated by `reason and experience.'" 358 U.S., at 79 . Pp. 43-46. • (b) Rule 501 of the Federal Rules of Evidence acknowledges the federal courts' authority to continue the evolutionary development of testimonial privileges in federal criminal trials "governed by the principles of the common law as they may be interpreted . . . in the light of reason and experience." P. 47. • (c) Since 1958, when Hawkins was decided, the trend in state law [445 U.S. 40, 41] has been toward divesting the accused of the privilege to bar adverse spousal testimony. Pp. 48-50. • (d) Information privately disclosed between husband and wife in the confidence of the marital relationship is privileged under the independent rule

whereby a woman was regarded as a chattel and denied a separate legal identity . Gershowitz. The indictment also named six unindicted coconspirators. Consideration of the foundations for the privilege and its history thus shows that "reason and experience" no longer justify so sweeping a rule as that found acceptable in Hawkins. and the Hawkins privilege. C. According to the indictment. for importing heroin into the United States from Thailand and the Philippine Islands and for conspiracy to import heroin in violation of 21 U.S. and by Mr. 1975. 53. and the contemporary justification for affording an accused such a privilege is unpersuasive.2d 1166. The ancient foundations for so sweeping a privilege .C. POWELL. . 952 (a). Booker for the Missouri Bar. 358 U. with four ounces of heroin on her person. United States. Freeman and Roberts assisted them in its distribution. * [ Footnote * ] Briefs of amici curiae were filed by Frank E. post.S. 440 U. When one spouse is willing to testify against the other in a criminal proceeding whatever the motivation . 934 (1979). Jr. 332 . is not limited to confidential communications but is invoked to also exclude evidence of criminal acts and of communications in the presence of third persons. carrying with them a quantity of heroin. J. in which BRENNAN. United States. and Joel M.. Edwin Lee Roberts and Joseph Freeman. J. filed an opinion concurring in the judgment. joined. which sweeps more broadly than any other testimonial privilege. STEWART. WHITE.protecting confidential marital communications.have long since disappeared. Elizabeth Trammel then traveled to Thailand where she purchased another supply of the drug.there is probably little in the way of marital harmony for the privilege to preserve. Deputy Solicitor General Frey. BURGER. petitioner Otis Trammel was indicted with two others. This calls for a re-examination of Hawkins v..S. p. Terry Wiggins argued the cause for petitioner. and STEVENS. 5053. MARSHALL. CHIEF JUSTICE BURGER delivered the opinion of the Court. Blau v. Solicitor General McCree argued the cause for the United States. J. On November 3. Elinor Hadley Stillman. We granted certiorari to consider whether an accused may invoke the privilege against adverse spousal testimony so as [445 U. MR. Pp. REHNQUIST.S.S. Fielder. including petitioner's wife Elizabeth Ann Trammel. she boarded a plane for the United States. petitioner and his wife flew from the Philippines to California in August 1975. 42] to exclude the voluntary testimony of his wife. 1976. JJ. delivered the opinion of the Court. 962 (a). and 963.. 583 F. Booker for the Michigan Bar Association Standing Committee on Civil Procedure. 74 (1958). BLACKMUN. 40. I On March 10. affirmed. With him on the brief was Frederick A. 340 U. With him on the brief were Assistant Attorney General Heymann.

C. contravened this Court's teaching in Hawkins v. II The privilege claimed by petitioner has ancient roots. After discussions with Drug Enforcement Administration agents.S.During a routine customs search in Hawaii. 1 She explained that her cooperation with the Government was based on assurances that she would be given [445 U. her role and that of her husband in the heroin distribution conspiracy.S. supra. At trial. The Court of Appeals rejected this contention. Coke. Elizabeth Trammel testified within the limits of the court's pretrial ruling. See. and therefore constituted reversible error. Trammel was called as a Government witness under a grant of use immunity. Prior to trial on this indictment. the District Court ruled that Mrs. petitioner moved to sever his case from that of Roberts and Freeman. Lord Coke observed that "it hath beene resolved [445 U. confidential communications between petitioner and his wife were held to be privileged and inadmissible. Mrs. second." 583 F. 1168 (CA10 1978). At a hearing on the motion. generally.S. however. 2 She then described. 40. United States. constituted virtually its entire case against petitioner. 1961). 18 U. A Commentarie upon Littleton 6b (1628). she agreed to cooperate with the Government." 1 E. 5010 (b). the concept that husband . Wigmore. and she was arrested. she was searched. This spousal disqualification sprang from two canons of medieval jurisprudence: first. the heroin was discovered. 3 In the Court of Appeals petitioner's only claim of error was that the admission of the adverse testimony of his wife. Evidence 2227 (McNaughton rev. in considerable detail. She testified that she and petitioner were married in May 1975 and that they remained married. Writing in 1628. It concluded that Hawkins did not prohibit "the voluntary testimony of a spouse who appears as an unindicted coconspirator under grant of immunity from the Government in return for her testimony. 43] lenient treatment. After hearing this testimony. The motion to sever was denied. He advised the court that the Government intended to call his wife as an adverse witness and asserted his claim to a privilege to prevent her from testifying against him. over his objection. the rule that an accused was not permitted to testify in his own behalf because of his interest in the proceeding. He was found guilty on both the substantive and conspiracy charges and sentenced to an indeterminate term of years pursuant to the Federal Youth Corrections Act. 40. 44] by the Justices that a wife cannot be produced either against or for her husband. her testimony. Trammel could testify in support of the Government's case to any act she observed during the marriage and to any communication "made in the presence of a third person".2d 1166. 8 J. as the Government concedes.

United States. See id. over his objection. the rule was sharply criticized.S. in Funk v. 5 These criticisms influenced the American Law Institute. 45] Professor Wigmore termed it "the merest anachronism in legal theory and an indefensible obstruction to truth in practice. Model Code of Evidence. 13 Pet. the husband was that one. in its 1942 Model Code of Evidence. Rule 215 (1942). United States. 118 (1893). 2333. From those two now long-abandoned doctrines. drafted by the National Conference of Commissioners on Uniform State Laws.S. 4 [445 U. this rule of spousal disqualification remained intact in most common-law jurisdictions well into the 19th century. it was not until 1933. that this Court abolished the testimonial disqualification in the federal courts. In 1953 the Uniform Rules of Evidence. this Court considered the continued vitality of the privilege against adverse spousal testimony in the federal courts. Funk. where it was deemed so well established a proposition as to "hardly require[e] mention. In its place.. 290 U. in Graves v. it followed that what was inadmissible from the lips of the defendanthusband was also inadmissible from his wife. but expressly rejected a rule vesting in the defendant the right to exclude all adverse testimony of his spouse. followed a similar course. Several state legislatures enacted similarly patterned provisions into law. at 373. Evidence." Indeed. Bowman. and largely a sentimental relic. of not requiring one spouse to testify against the other in a criminal action. at 221. modeled on the privilege between priest and penitent. United States. still existing in some states. There the District Court had permitted petitioner's wife. See 8 Wigmore 2332 et seq. The modern justification for this privilege against adverse spousal testimony is its perceived role in fostering the harmony and sanctity of the marriage relationship.S. so as to permit the spouse of a defendant to testify in the defendant's behalf. which. With one questioning concurring opinion.S. 220-223 (1839). 358 U. 150 U. to testify against him. United States. Notwithstanding this benign purpose." See Rule 23 (2) and comments. left undisturbed the rule that either spouse could prevent the other from giving adverse testimony. It was applied by this Court in Stein v.. The Committee on Improvements in the Law of Evidence of the American Bar Association called for its abolition. 63 American Bar Association Reports 594-595 (1938). 209. The rule thus evolved into one of privilege rather than one of absolute disqualification. Common Sense and Common Law 78-92 (1947). and physician and patient. the Court held the wife's . See American Law Institute. advocated a privilege for marital confidences. it limited the privilege to confidential communications and "abolishe[d] the rule. Maguire. 254 U.and wife were one. and again in Jin Fuey Moy v. 6 [445 U. 74 (1958). See J. and that since the woman had no recognized separate legal existence. Wigmore and others suggested a privilege protecting only private marital communications. 371 . 189." 8 Wigmore 2228. however.S. Id. 46] In Hawkins v. Despite its medieval origins. attorney and client. 40. 40. 195 (1920).S.

4. 8 Although Rule 501 confirms the authority of the federal courts to reconsider the continued validity of the Hawkins [445 U. 48] rule. See also S. Rep." 120 Cong. That proposal defined nine specific privileges. and family relationships . Cf. 7 However. See proposed Fed. Rec. [445 U. 501.'" 358 U. and n. Rule Evid. at 79. left the federal privilege for adverse spousal testimony where it found it. 528 (1960).. 93-1277. Also rejected was the Government's suggestion that the Court modify the privilege by vesting it in the witness-spouse.S.S. Accord. and to leave the door open to change. p. 525. Hungate). 40. 505.S. in the light of reason and experience." Id. p. Wolfie v. it took note of the critical comments that the common-law rule had engendered. Congress manifested an affirmative intention not to freeze the law of privilege. Wyatt v.. the Court made clear that its decision was not meant to "foreclose whatever changes in the rule may eventually be dictated by `reason and experience. In rejecting the proposed Rules and enacting Rule 501. with freedom to testify or not independent of the defendant's control. 40891 (1974) (statement of Rep.testimony inadmissible. That the privilege is one affecting marriage. then. 362 U. The Court viewed this proposed modification as antithetical to the widespread belief. the long history of the privilege suggests that it ought not to be casually cast aside. id. Rule Evid. or further inflame existing domestic differences.S. 12 (1934). The general mandate of Rule 501 was substituted by the Congress for a set of privilege rules drafted by the Judicial Conference Advisory Committee on Rules of Evidence and approved by the Judicial Conference of the United States and by this Court. 40. .already subject to much erosion in our day . evidenced in the rules then in effect in a majority of the States and in England. Rep. at 76." Fed. at 79 . 93-650.. 8 (1973). R. . Hawkins. At the same time.S. United States. but chose not to abandon it. including a husband-wife privilege which would have codified the Hawkins rule and eliminated the privilege for confidential marital communications. No. continuing "a rule which bars the testimony of one spouse against the other unless both consent. at 78.also counsels caution. H. 7.. Its purpose rather was to "provide the courts with the flexibility to develop rules of privilege on a case-by-case basis. 11 (1974). home. 291 U. we cannot escape the reality . No. "that the law should not force or encourage testimony which might alienate husband and wife." Id. United States. 47] III A The Federal Rules of Evidence acknowledge the authority of the federal courts to continue the evolutionary development of testimonial privileges in federal criminal trials "governed by the principles of the common law as they may be interpreted . in so doing.

419 U. 206. concurring). North Dakota. ancient rule[s] of the common law under conditions as they now exist. but again rejected the Hawkins rule in favor of a limited privilege for confidential communications. "[w]hen precedent and precedent alone is all the argument that can be made to support a court-fashioned rule. 10 The trend in state law toward [445 U. . 404 (1975). dissenting). Iowa.S. See Sosna v.S.S. Thirty-one jurisdictions." Elkins v. As such... United States v.. 683 . 40.that the law on occasion adheres to doctrinal concepts long after the reasons which gave them birth have disappeared and after experience suggests the need for change.S. then allowed an accused a privilege to prevent adverse spousal testimony. 471 (1948) (dissenting opinion).. 445. Scholarly criticism of the Hawkins rule has also continued unabated. has a right to every man's evidence. J.. 40. 234 (1960) (Frankfurter. 50] divesting the accused of the privilege to bar adverse spousal testimony has special relevance because the laws of marriage and domestic relations are concerns traditionally reserved to the states.S. when Hawkins was decided. United States. J. 339 U. they must be strictly construed and accepted "only to the very limited extent that permitting a refusal to testify or excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth. at 81 .'" United States v.S. Those confidences are privileged under . [445 U. 13 Pet. Here we must decide whether the privilege against adverse spousal testimony promotes sufficiently important interests to outweigh the need for probative evidence in the administration of criminal justice. This was recognized in Funk where the Court "decline[d] to enforce . n." 290 U. For. as Mr. Bryan. 40. 3 (STEWART. 323.S. and Oklahoma . Justice Black admonished in another setting. That proposed rule has been enacted in Arkansas. Nixon. Rule 504. . 49] Conference on Uniform State Laws revised its Uniform Rules of Evidence." Francis v." Stein v. 393.each of which in 1958 permitted an accused to exclude adverse spousal testimony.once described by this Court as "the best solace of human existence. including Alaska and Hawaii. 358 U. 418 U. at 223. 9 In 1974. Accord. 51] 709-710 (1974). support for the privilege against adverse spousal testimony has been eroded further. Bowman. B Since 1958. at 382 .S. the National [445 U. . See Uniform Rules of Evidence. 11 C Testimonial exclusionary rules and privileges contravene the fundamental principle that "`the public . 364 U. 331 (1950).S. it is time for the rule's creator to destroy it. Southern Pacific Co.. It is essential to remember that the Hawkins privilege is not needed to protect information privately disclosed between husband and wife in the confidence of the marital relationship .S. The number has now declined to 24. 333 U. .

As Jeremy Bentham observed more than a century and a half ago.whatever the motivation . United States. The priest-penitent privilege recognizes the human need to disclose to a spiritual counselor. The ancient foundations for so sweeping a privilege have long since disappeared.the independent rule protecting confidential marital communications. over the years those archaic notions have been cast aside so that "[n]o longer is the female destined solely for the home and the rearing of the family.their relationship is almost certainly in disrepair. there is probably little in the way of marital harmony for the privilege to preserve. but rather to exclude evidence of criminal acts and of communications made in the presence of third persons. 12 Indeed. the physician must know all that a patient can articulate in order to identify and to treat disease. Stanton." and permits a person [445 U. a rule of evidence that permits an accused to prevent adverse spousal testimony seems far more likely to frustrate justice than to foster family peace. It "secures.indeed in any modern society .S. 5. No other testimonial privilege sweeps so broadly. For example. These privileges are rooted in the imperative need for confidence and trust." Id. what are believed to be flawed acts or thoughts and to receive priestly consolation and guidance in return. 52] to convert his house into "a den of thieves. The Hawkins rule stands in marked contrast to these three privileges. there is reason to believe that vesting the privilege in the accused could actually undermine the marital relationship. to every man. When one spouse is willing to testify against the other in a criminal proceeding . Similarly. 7. attorney and client.S.. If the Government is dissuaded from making such an offer. The Hawkins privilege is invoked. 332 (1951)." Stanton v. in total and absolute confidence. 40. Its protection is not limited to confidential communications. and physician and patient limit protection to private communications. at 338. The contemporary justification for affording an accused such a privilege is also unpersuasive.is a woman regarded as chattel or demeaned by denial of a separate legal identity and the dignity associated with recognition as a whole human being. such a privilege goes far beyond making "every man's house his castle.S. one safe and unquestionable and ever ready accomplice for every imaginable crime. 340 U. Chip by chip. The lawyer-client privilege rests on the need for the advocate and counselor to know all that relates to the client's reasons for seeking representation if the professional mission is to be carried out. barriers to full disclosure would impair diagnosis and treatment." 5 Rationale of Judicial Evidence 340 (1827). in a case such as this. The privileges between priest and penitent. 14 -15 (1975). the privilege . In these circumstances. and only the male for the marketplace and the world of ideas. not to exclude private marital communications. the Government is unlikely to offer a wife immunity and lenient treatment if it knows that her husband can prevent her from giving adverse testimony. Nowhere in the common-law world . Blau v. 421 U. see n. supra. rather it permits an accused to exclude all adverse spousal testimony.

434 U.can have the untoward effect of permitting one [445 U. This modification .S.vesting the privilege in the witness-spouse furthers the important public interest in marital harmony without unduly burdening legitimate law enforcement needs. It hardly seems conducive to the preservation of the marital relation to place a wife in jeopardy solely by virtue of her husband's control over her testimony. Cf. Bordenkircher v. That she did so after a grant of immunity and assurances of lenient treatment does not render her testimony involuntary. . we conclude that the existing rule should be modified so that the witness-spouse alone has a privilege to refuse to testify adversely. petitioner's spouse chose to testify against him. 53] spouse to escape justice at the expense of the other. and the judgment of the Court of Appeals is Affirmed. Accordingly. Accordingly.S. Here. 40. the District Court and the Court of Appeals were correct in rejecting petitioner's claim of privilege. Hayes. 357 (1978). the witness may be neither compelled to testify nor foreclosed from testifying. IV Our consideration of the foundations for the privilege and its history satisfy us that "reason and experience" no longer justify so sweeping a rule as that found acceptable by the Court in Hawkins.

. MONTGOMERY COUNTY BOARD OF EDUCATION et al. et al. Petitioner. Petitioners. v. MONTGOMERY COUNTY BOARD OF EDUCATION et al. by Arlam Carr and Johnnie Cr r. Arlam CARR. etc. v... Jr..UNITED STATES.

for petitioners. 1954. Decided: June 2. • opinion. 483.Ct. 400 F.Nos. 99 L. Many other States had for many years maintained a completely separate system of schools for whites and nonwhites. the board appelled. Ala. inviting the Attorney General of the United States and the Attorneys General of the States providing for racial segregation in the public schools to present their views on the best ways to implement and enforce our judgment. Erwin N. we decided that segregation of the races in the public schools is unconstitutional. 98 L.' Id. 753.. Griswold and Jack Greenberg. 989. Mr. by a two-to-one vote. BLACK [HTML] Sol. We devoted four days to the argument on this single problem. 1969. 798.S. the laws permitted but did not require racial segregation. 1969.Ct. 294. Brown v. 75 S. A panel of the Court of Appeals affirmed the District Court's order but. Joseph D.. at 756. on May 17. both civil and criminal. 74 S.Ed.Ct. six to six. and we noted that in some of these States 'substantial steps to eliminate racial discrimination in public schools have already been taken * * *. 647 (1968). Justice BLACK delivered the opinion of the Court..2d 1 (1968). 2 On petitions of the United States as intervenor below in No. Board of Education.2d 121 (1969). 89 S. Dissatisfied with the District Court's order. 686. 1116. and all the affected parties were given the opportunity to present their views at length. 997. 289 F. we announced our decision in Brown II.S. had been written to keep this segregated system of schools . at 299. In some of the States that argued before us. thereby leaving standing the modifications in the District Court's order made by the panel.L.R. 347 U. After careful consideration of the many viewpoints so fully aired by the parties. we granted certiorari. Montgomery. 349 U. ordered the local Montgomery County Board of Education to bring about a racial desegregation of the faculty and the staff of the local county school system. 997. 393 U. Argued: April 28. and the individual plaintiffs in No. 798.Ct. 75 S. 22 L. 873. Fifteen years ago. Alabama.Supp. New York City. 38 A. 1083 (1955).S. Phelps. and the laws of these States. and set the case down for another hearing. In that case we left undecided the manner in which the transition from segregated to unitary school systems would be achieved.Ed. modified it in part.Ed.2d 1180 (Brown I). Gen. 1 A petition for rehearing en banc was denied by an evenly divided court. We held that the primary responsibility for abolishing the system of segregated schools would rest with the local school authorities. In this action the United States District Court at Montgomery. for respondents.

we neither expected nor ordered that a complete abandonment of the old and adoption of a new system be accomplished overnight. with loyalties to the system of separate white and Negro schools..inviolate. those courts to be guided by traditional equitable flexibility to shape remedies in order to adjust and reconcile public and private needs. 301. 705. 75 S.' Id. and customs had for generations made this segregated school system a fixed part of the daily life and expectations of the people. On July 31. Recognizing these indisputable facts. at 756.Supp. Once such a start has been made. at 300. We were not content. after preliminary procedural matters were disposed of. at 300. habits. '(I)t should go without saying that the vitality of these constitutional principles cannot be allowed to yield simply because of disagreement with them. Consequently. id. local courts so far as practc able. and indeed all other schools in the State. As we stressed then. a trial took place. 3 There the matter stood in Alabama in May 1964 when the present action was brought by Negro children and their parents. to leave this task in the unsupervised hands of local school authorities. The judge found that at the time: . The practices. ruling. 1964. and issues joined.. at 756. The problem of delays by local school authorities during the transition period was therefore to be the responsibility of courts. District Judge Johnson handed down an opinion and entered an order. Obviously voluntary integration by the local school officials in Montgomery had not proved to be even partially successful. however. trained as most would be under the old laws and practices. if Negro children of school age were to receive their constitutional rights as we had declared them to exist. as though our Brown cases had never been decided. 1954. answers filed. The changes were to be made 'at the earliest practicable date' and with 'all deliberate speed.' The record shows that neither Montgomery County nor any other area in Alabama voluntarily took any effective steps to integrate the public schools for about 10 years after our Brown I opinion. at 300. the courts may find that additional time is necessary to carry out the ruling in an effective manner. had operated. Apparently up to that time Montgomery County. So. These courts were charged in our Brown II opinion. the coercive assistance of courts was imperatively called for.. 232 F.' Id. The burden rests upon the defendants to establish that such time is necessary in the public interest and is consistent with good faith compliance at the earliest practicable date.Ct. 75 S.. with a duty to: 'require that the defendants (local school authorities) make a prompt and reasonable start toward full compliance with our May 17. at 756..Ct. with participation by the United States as amicus curiae.Ct.. In fact the record makes clear that that state government and its school officials attempted in every way possible to continue the dual system of racially segregated schools in defiance of our repeated unanimous holdings that such a system violated the United States Constitution. 75 S. so far as actual racial integration was concerned.

custom and practice. Judge Johnson ordered that integration of certain grades begin in September 1964. In this school system for the school year 1963—64. that. The school board. operates a dual school system based upon race and color. During these years of what turned out to be an exchange of ideas between judge and school board officials. 'From the evidence in this case.' 232 F. The judge refused to order admission of the 21 Negro students whose transfer applications had been rejected by the school officials. The record. at 707.2d. preceding these additional orders. also reveals that in some areas the board was not moving as rapidly as it could to fulfill this duty. opinions. These annual reports and orders. In this system the Montgomery County Board of Education owns and operates approximately 77 schools. the judge. these officials operate one set of schools to be attended exclusively by Negro students and one set of schools to be attended exclusively by white students. functioning at the present time through the named individual defendants.'There is only one school district for Montgomery County. and orders by him. with the County Board of Education and the Superintendent of Education of Montgomery County. 3.. that is to say.Supp. exercising complete control over the entire system. through policy. the Montgomery County Board of Education. found it possible to compliment the board on its cooperation with him in trying to bring about a fully integrated school system. The 1964 initial order of Judge Johnson was followed by yearly proceedings. Alabama. acting under the State's school placement law.000 white children. at 3. this Court further specifically finds that. 4 Hearings. finally admitted eight Negro students out of the 29 who had sought transfers to white schools under the judge's July 31 order. Some of these complimentary remarks are set out in the opinion of the Court of Appeals modifying the judge's decree. Negro teachers are assigned only to schools attended by Negro students and white teachers are assigned only to schools attended by white students. On the other hand the board did not see eye to eye with Judge Johnson on the speed with which segregation should be wiped out . through this policy.000 Negro children and approximately 25. but in this first order did no require efforts to desegregate the faculty. followed the filing each year under the judge's direction of a report of the school board's plans for proceeding with desegregation. The evidence further reflects that the teachers are assigned according to race. and the record shows a constant effort by the judge to expedite the process of moving as rapidly as practical toward the goal of a wholly unitary system of schools. however. Board on his findings. not divided by race as to either students or faculty. there were in attendance approximately 15. together with transcripts of the discussions at the hearings. practice and custom. seem to reveal a growing recognition on the part of the school board of its responsibility to achieve integration as rapidly as practicable. n. from time to time. Alabama. 400 F.

In his 1968 order Judge Johnson provided for safeguards to assure that construction of new schools or additions to existing schools would not follow a pattern tending to perpetuate segregation. 198. School Board of City of Richmond. having to face the 'complexities arising from the transition to a system of public education freed of racial discrimination. the school board accepted its decision and did not seek review on the question here... at 650. Nearly all of these aspects of the order were accepted by the school board and not challenged in its appeal to the Court of Appeals. He also found: 'The evidence does not reflect any real administrative problems involved in immediately desegregating the substitute teachers. a goal that we have recognized to be an important aspect of the basic task of achieving a public school system wholly free from racial discrimination.g. Va.Ed. Of the provisions so far mentioned. e. 99 L. . Bradley v. 382 U. Judge Johnson noted that in 1966 he had ordered the board to begin the process of faculty desegregation in the 1966—1967 school year but that the board had not made adequate progress toward this goal.S. the student teachers. 15 L. The order also provided for the adoption of nondiscriminatory bus routes and for other safeguards to insure that the board's transportation policy would not tend to perpetuate segregation.2d 716 (1968). and in the evolvement of a really legally adequate program for the substantial desegregation of the faculties of all schools in the system commencing with the school year of 1968 69.Ct.. Paul. only one aspect of the provision relating to Jefferson Davis High School was challenged in the Court of Appeals. The order also included a requirement that the board file in the near future further specific reports detailing the steps take to comply with each point of the order. 75 S.. Green v. 1694. It is gratifying. In this context of clashing objectives it is not surprising that the judge's most recent 1968 order should have failed fully to satisfy either side.Ed.2d 265 (1965). 20 L. The dispute in this action thus centers only on that part of the 1968 order which deals with faculty and staff desegregation. however.Ct. at 299. 86 S. that the differences are so minor as they appear to us to be.Ed. 88 S.'root and branch' as we have held it must be done.2d 187 (1965). 1689. 86 S.S. 358. 1083 was constantly sparring for time. The order provided for detailed steps to eliminate the impression existing in the school district that the new Jefferson Davis High School and two new elementary schools were to be used primarily by white students. 224. 391 U. County School Board. 349 U. 430.' Brown II.. 15 L. the judge.S. See. at 755. 103. Rogers v.Supp. the night school faculties.Ct. 382 U.' 289 F. The school board.S.Ct. 438. upon whom was thrust the difficult task of insuring the achievement of complete integration at the earliest practicable date. and after the Court of Appeals upheld Judge Johnso' § order on this point. was constantly urging that no unnecessary delay could be allowed in reaching complete compliance with our mandate that racially segregated public schools be made nothing but a matter of past history.Ed.

It held that the part of the order setting a specific goal for the 1968 1969 school year should be modified to require only substantially or approximately' the 5—1 ratio required by Judge Johnson's order.He therefore concluded that a more specific order would be appropriate under all the circumstances to establish the minimum amount of progress that would be required for the future.' and noting that the testimony of school officials themselves indicated the need for more specific guidelines. With respect to the ultimate objective for the future. and in schools with 12 or more teachers. as previously shown. as he had originally required. the race of at least one out of every six faculty and staff members was required to be different from the race of the majority of the faculty and staff members at that school. The goals to be required for future years were not specified but were reserved for later decision. For the 1968—1969 school year. At the time the ratio of white to Negro full-time teachers in the system as a whole was three to two. amended his outstanding order because a less stringent order for another district had been approved by the Court of Appeals. it held that the numerical ratio should be eliminated and that compliance should not be tested solely by the achievement of specified ratios. On at least one occasion Judge Johnson. But after a careful consideration of the whole record we cannot believe that Judge Johnson had any such intention. During the four or five years that he held hearings and considered the problem before him.. were issued annually and sometimes more often. These arguments might possibly be more troublesome if we read the District Court's order as being absolutely rigid and inflexible. at 654. In so holding. With respect to full-time teachers. This was done in order not to inflict any possible injustice on the . the Court of Appeals made many arguments g ainst rigid or inflexible orders in this kind of case. It was the part of the District Court's order containing this ratio pattern that prompted the modification of the order by the Court of Appeals. student and night school teachers in each school was to be almost immediately made substantially the same as the ratio of Negro to white teachers in each of these groups for the system as a whole. a more gradual schedule was set forth. The ratio of Negro to white teachers in the assignment of substitute.' Id. as did the Court of Appeals. new orders. on his own motion. About a week later Judge Johnson amended part of the original order by providing that in the 1968—1969 term schools with less than 12 teachers would be required to have only one full-time teacher of the minority race rather than two. each school with fewer than 12 teachers was required to have at least two full-time teachers whose race was different from the race of the majority of the faculty at that school. 5 the Court of Appeals nevertheless struck down parts of the order which it viewed as requiring 'fixed mathematical' ratios. Agreeing that the District Court had properly found from 'extensive hearings * * * that desegregation of faculties in the Montgomery County school system was lagging and that appellants (the school board) had failed to comply with earlier orders of the court requiring full faculty desegregation. In addition. To this end his order provided that the board must move toward a goal under which 'in each school the ratio of white to Negro faculty members is substantially the same as it is throughout the system. the order set forth a specific schedule.

Montgomery County school system.Ct. at 1694. the District Court's order 'is designed as a remedy for past racial assignment * * *. as brought up to date by this Court's opinions in Green v. particularly in view of the fact that the Court of Appeals as a whole was evenly divided on this subject. 20 L.Ct. would.S. in this field the way must always be left open for experimentation. there is no sign of lack of interest in the cause of either justice or education in the views maintained by any of the parties or in the orders entered by either of the courts below.' The modifications ordered by the panel of the Court of Appeals... and promises realistically to work now. Petitioners. These respondents recognize their responsibility to assign teachers without regard to race so that schools throughout the system are not racially identifiable by their faculties * * *. unitary. on the other hand. 1226. 391 U.' Brief for the United States 13. County School Board.Ed. argue here that racially balanced faculties are constitutionally or legally required. 6 Judge Johnson's order now before us was adopted in the spirit of this Court's opinion in Green v. do not argue for precisely equal ratios in every single school under all circumstances. Respondents. petitioner in No. supra. recognizes in its brief. Despite the fact that the individual petitioners in this litigation have with some reason argued that Judge Johnson should have gone farther to protect their rights than he did. the day when a completely unified. in that his plan 'promises realistically to work. This. Both the District Judge and the Court of Appeals have accorded to the parties and their counsel courteous and patient consideration. 12 L. It is good to be able to decide a case with the feelings we have about this one The differences between the parties are exceedingly narrow. we approve his order as he wrote it. state clearly in their brief. 377 U.S. by accepting the more specific and expeditious order of Judge Johnson. 1234— 1235. whose patience and wisdom are written for all to see and read on the pages of the five-year record before us. members of the Montgomery County school board. As the United States.' Brief for Respondents 11—12. We believe it best to leave Judge Johnson's order as written rather than as modified by the 2—1 panel. take from the order some of its capacity to expedite. unitary and nonracial school system. We hope and believe that this order and the approval that we now give it will carry Alabama a long distance on its way toward . as this Court also has recognized. nondiscriminatory school system becomes reality instead of a hope. Indeed the record is filled with statements by Judge Johnson showing his full understanding of the fact that. We do not. In short the Montgomery County school board. we think.2d 716. County School Board.2d 256 (1964). at 439. and its counsel. 84 S. 798. 218. in other words. County School Board. while of course not intended to do so. assert their purpose to bring about a racially integrated school system as early as practicable in good-faith obedience to this Court's decisions. and Griffin v. is the best course we can take in the interest of the petitioners and the public school system of Alabama. 88 S. We also believe that under all the circumstances of this case we follow the original plan outlined in Brown II.Ed. 233—234. 'These respondents recognize their affirmative responsibility to provide a desegregated. supra. by means of specific commands. we believe.

and the cases are remanded with directions to affirm the judgment of the District Court. . Judgment of Court of Appeals reversed and case remanded with directions. It is so ordered.obedience to the law of the land as we have declared it in the two Brown cases and those that have followed them. The judgment of the Court of Appeals is reversed.

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