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.'
^1 Cases such as Mannings v. Board of Public Instruction of Hillsborough County, 5 Cir., 277 F.2d 370, and Borders v. Rippy, 5 Cir., 247 F.2d 268 (where the school boards had taken no affirmative steps whatever to desegregate the schools), and Orleans Parish School Board v. Bush, 5 Cir., 242 F.2d 156, and Gibson v. Board of Public Instrucdtion of Dade County, 5 Cir., 246 F.2d 913 (arising in States having school segregation statutes on their books), are wide of the mark in the circumstances of this case.
^2 Section 18-12 of the School Code of Illinois provides in part:
'No State aid claim may be filed for any district unless the clerk or secretary of the school board executes and files with the Superintendent of Public Instruction, on forms prescribed by him, a sworn statement that the district has complied with the requirements of Section 10-22.5 in regard to the non-segregation of pupils on account of color, creed, race or nationality.'
^3 As early as 1901 the Supreme Court of Illinois in People ex rel. Bibb v. Mayor etc., of City of Alton, 193 Ill. 309, 312, 61 N.E. 1077, 1078, 56 L.R.A. 95, construing Art. VIII, § 1, of the Illinois Constitution, held:
'The complaint of the relator is that his children have been excluded, on account of their color, from the public school of said city located near his residence, and been required to attend a school located a mile and a half distant from his residence, established exclusively for colored children. Such complaint is not met by showing that the schools established for colored children in said city equal or surpass in educational facilities the schools established in said city for white children. Under the law the common council of said city had no right to establish different schools for the white children and colored children of said city, and to exclude the colored children from the schools established for white children, even though the schools established for colored children furnished educational facilities equal or superior to those of the schools established for white children.'
Section 10-22.5 of the School Code of Illinois has provided since 1945 that:
'* * * no pupil shall be excluded from or segregated in any such school on account of his color, race or nationality.'
Sections 22-11 and 22-12 of the School Code, enacted in 1909, provide:
'Any school officer or other person who excludes or aids in excluding from the public schools, on account of color, any child who is entitled to the benefits of such school shall be fined not less than $5 nor more than $100.'
'Whoever by threat, menace or intimidation prevents any colored child entitled to attend a public school in this State from attending such school shall be fined not exceeding $25.'