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PAGE 14 —Dec. I. 1954 — SOUTHERN SCHOOL NEWS
Texas
AUSTIN, Tex.
A TTY. Gen. John Ben Shepperd’s
brief to the United States Su
preme Court, urging transition and
continued control over schools, fea
tured Texas’ activity on the racial
segregation problem in November.
Mr. Shepperd concluded:
Since our position before the Court is
that of amicus curiae only and not that
of a party, ordinarily we would not as
sume to state specifically the scope of the
decrees to be entered by the Court in
these cases. If the Court attempted to
formulate a general decree applicable to
all school districts and States, it would
be prejudging a multitude of cases not
before the Court. However, in entering
appropriate decrees the Court should
consider the following suggestions which
are respectfully submitted at the request
of the Court:
(1) In formulating a decree or decrees,
the Court should recognize the long es
tablished traditions and usages which
have prevailed in those states maintaining
a segregated school system, such as Texas,
under the separate but equal doctrine as
predicated upon the principles announced
in Plessy v. Ferguson, supra. These tradi
tions and usages should not be suddenly
and abruptly destroyed. A period of or
derly transition will insure that a de
cree will meet with no more than passive
resistance by the public.
(2) In formulating a decree or decrees,
this Court must preserve the democratic
and salutary principle of local self gov
ernment inherent in our public school
systems. Any decree or decrees entered
by the Court should protect this principle.
In this manner the decrees could appro
priately be implemented by the local
school authorities as a legislative and ad
ministrative matter.
(3) The Court, in formulating a decree
or decrees, should preserve the right of
free selection and choice by the patrons
of public schools in selecting the school
which will be patronized.
PAST RULINGS CITED
The Texas Atty. Gen. said that
Texas officials have relied on past
court opinions in providing separate
facilities for white and Negro stu
dents.
“This Honorable Court in many of
its decisions has held that the states
may provide education at their own
expense for white and Negro students
in separate schools so long as equal
facilities and advantages are offered
both groups,” he wrote.
The brief cited Plessy v. Ferguson
and related cases.
When the courts have announced, for
the guidance and government of individ
uals and the public, certain controlling
principles of law, they should not be
changed, because the law by which men
are governed should be fixed, definite
and known, particularly when millions of
dollars have been spent in reliance there
on. Attending a public free school is a
privilege extended by the state. It is not
a right of a citizen of the United
States . . .
So long as the privileges extended to all
groups are equal no one is deprived of
the equal protection of the law. The deci
sions of this Honorable Court have recog
nized that, where necessity exists, the
teaching of white and Negro students in
separate classrooms is a reasonable exer
cise of the state’s police power. To pre
serve the public peace, harmony and the
general welfare, the people of Texas in
their Constitution, and the Legislature by
statutes have declared that such a neces
sity exists in Texas.
There is no discrimination on the part
of the State of Texas in administering its
public school system, only separation of
the races. It is the belief of the people of
this State that discrimination against the
individual can best be eliminated by
segregation of the races in the education
al system. It is the evil of discrimination
and not segregation per se that is con
demned by the United States Constitution.
Section 7 of Article VII of the Texas
Constitution and related statutes provide
that the State shall furnish equal educa
tion to its Negro and white students. The
State of Texas has been operating under
the assumption that the power of states
so to classify and the reasonableness of
the classification had been settled as a
matter of law since 1896 and was not
violative of the equal protection clause
of the Fourteenth Amendment.
However, if the occasion arises where
by we are compelled to abolish segrega
tion in Texas, it should be by a gradual
adjustment in view of the complexities
of the problem. Such complexities in
clude the unwillingness of the Texas peo
ple immediately to abide by the decision,
the varying degrees in which different
areas of the State of Texas would be af
fected, and the result of such a decision
would have on the State’s public school
system which has been maintained on a
segregated basis for generations.
Legal action which bears upon the
folkways of nearly one-fourth of the na
tion’s population cannot be effective un
less the affected group is largely willing
to abide by it. No individual can be
forced against his will to accept, associate,
or cohabit with another not of his own
choosing. The Fourteenth Amendment to
the United States Constitution prohibits
only “State action” which is discrimina
tory because of race, creed or color, not
the prejudices or discrimination evi
denced by individuals toward their fellow
man . . .
And while it has been determined that
equal but separate facilities maintained
in the public tree school systems of the
states involved in this litigation is “State
action” in violation of the Fourteenth
Amendment, still this Court should con
sider that such a decision also affects the
individual rights, mores and beliefs of
the Southern people. To insure that the
people of the South accept the decision
and make moral decisions of their own
commensurate with the end of bettering
the Negro race, some way must be found
to protect the constitutional rights of the
minority without ignoring the will of the
majority.
The underlying thought implicit in the
Court s decision in these cases is that a
feernig of mieriority is generated m the
Negro child, restating not from actual at-
tenuance m a segregated scnooi, but from
the legal requirement unuer which the
Negro child is forced to attend separate
schoois. From the standpoint of principle,
there is no real differences between com
pulsory segregation and compulsory in
tegration. Compulsion can only arouse
resentment, individual discrimination,
and, as experience has demonstrated in
other states, violence. The objectives
reached by the War between the States
left a scar of bitterness and resentment
that is visible even now in some parts
of the South. Such, we hope, will not be
the result of this Court’s May 17th deci
sion.
POPULATION FIGURES
Mr. Shepperd submitted with his
brief a map showing distribution of
Texas’ Negro population. Of 7,711,194
people (ly50 federal census), there
were 977,458 Negroes or 12.7 per cent
of the total.
Of 1,785,918 scholastics in Texas for
the 1954-55 school year, Negroes
numbered 230,546, or 13 per cent. The
Texas brief included a map showing
that 45 counties in northeast Texas
(of 254 in the whole state) have half
of the total Negro students. Four
counties have more Negro pupils than
white.
Another 40 per cent of the state’s
total Negro scholastics live 43 coun
ties adjoining the 45 which have the
heaviest concentration.
Ninety per cent of the Negro stu
dents in Texas live in 88 counties of
northeast Texas. Forty-one counties
have no Negro scholastics. The re
maining 10 per cent are scattered in
125 counties.
The attorney general noted that the
distribution of Negroes shows “that
the segregation problem is not state
wide, but is of serious import and of
vital concern to our local school dis
tricts.”
Of 213 Texas counties listing Negro
scholastics, 146 counties offer a com
plete Negro high school, 21 counties
offer some Negro high school, but not
12 grades, and 36 counties offer only
Negro elementary school. Ten coun
ties operate no school for Negroes;
however, these counties have 10 or
fewer scholastics. Negro scholastics
in counties not having a complete 12
grades are transported at state ex
pense to other schools.
Texas in 1953-54 had a total of 1,953
active school districts, 292 of which
offered a full 12-grade school for both
white and Negro. One hundred twen
ty-five districts maintained a Negro
school but did not have a white
school. A total of 956 districts pro
vided Negro schools. The districts
that did not maintain a school for Ne
groes were primarily in areas that
did not contain Negro scholastics.
FOUNDATION PROGRAM
Mr. Shepperd also explained the
operation of the Texas Minimum
Foundation School Program set up
in 1949. He said:
Under this very effective program, edu
cation of the Texas school child is pro
vided on an equal but separate basis,
with millions of dollars being spent each
year. Under the Minimum Foundation
Program, as administered by Texas’
twenty-one-member elective State Board
of Education, all possible control and re
sponsibility are left to local school ad
ministrators and local school boards to
provide school programs to meet the needs
of the children in their communities.
As the name implies, the Minimum
Foundation Program guarantees to every
school-age child in Texas, regardless of
race, creed, color, economic status or
place of residence, at least a minimum
of a full nine months of schooling each
year, thereby spreading the state’s fi
nancial resources available for public
education as equally as possible among
the people. The program has been in ef
fect for five years, and during that time
the average daily attendance of school-
age children actually attending school
has risen from 73.77% in 1948-49 to 80.85%
JOHN BEN SHEPPERD
Texas Attorney General
during 1953-54. 79.31% of the Negro
schooi-age children were in average daily
attendance in 1953-54.
The Minimum Foundation Program
provides a system of financing wnich
guarantees to local school districts that
state funds will be available to pay the
cost of a minimum school program when
local funds are insufficient.
A number of the Texas school districts
do not need a supplemental appropriation
from the legislature. A majority of the
Texas schoois have surplus money de
rived from the local taxation with which
to enrich the local school program be
yond the minimum program prescribed
by the State. Expenditures from surplus
funds provide adult and kindergarten
classes for students not included m the
scholastic census age brackets, classes for
exceptional children, supplemental ex
penditures on salaries, maintenance and
capital costs, and any other authorized
school cost.
The state funds are provided in pro
portionate equality to all school districts,
for the benefit of all scholastics, irrespec
tive of race, creed or color. If a school
program superior to the minimum re
quirements is desired in any district, it
may be paid for by the taxes voted, levied
and collected from the taxpayers of the
district.
As a result of the Minimum Foundation
Program, teachers’ and school adminis
trators’ salaries have risen from 29th in
the nation to 16th. 97.1% of the Texas
teachers now have college degrees. Only
the State of Arizona exceeds this mark.
There are approximately 8,500 Negro
teachers and school administrators in
Texas. This number is nearly equal to the
total number of Negro educators in the
31 Northern and Western States which
practice non-segregation. According to
the U. S. News & World Report, Aug. 27,
1954, only one out of every 73 teachers in
those 31 states maintaining an integrated
system is a Negro, while in Texas, one
out of every five is a Negro.
These positions are believed to be the
most secure and best paid employment
the Negro has today. The effect of this
decision upon the teaching profession is
speculative, and any decree which would
disrupt the stability and security of
teachers should be avoided. Texas at the
present time has no tenure statute for
teachers in the public free schools. Em
ployment is through the local school
boards.
Under the Minimum Foundation Pro
gram, the public school system of Texas
has greatly raised its standards, teachers
have been benefited by salary increases
and retirement plans, and every school-
age child in Texas, without regard to his
race, creed or color, has been offered the
opportunity of education. The State has
not discriminated in its appropriations,
such being provided equally to all races
and persons, with the privilege and au
thority in each local district to go fur
ther if it is so desired. But the program
does provide for separate schools, sere
gating the races and contemplating an
equalization of facilities for all scholas
tics. Integration would require alteration
of the Minimum Foundation Program.
The establishment of an integrated
system is not a problem which would
apply equally to West or South Texas,
where there is only a small percentage of
the Negro population, and to Northeast
Texas, where the concentration of the
Negro population is the heaviest. No
equitable general decrees could ever be
formulated for the entire State of Texas.
Mr. Shepperd declared that the Su
preme Court already has recognized
the complexity of writing a decree
which will fit all cases. In arguing for
gradual adjustment, the Texas official
said:
“Any decree of the Court that
might affect Texas must leave this
administration in the local school dis
tricts unhampered. The problems
with which we are confronted can
best be resolved at the local level.
»>
EDGAR’S VIEWS GIVEN
The brief quoted Dr. J. W. Edgar,
Texas Commissioner of Education:
“Texas has 2,000 problems as a re
sult of the Supreme Court’s decision.
We have 2,000 school districts, and
they vary from totally white to to
tally Negro.
“The final decree by the Court
ought to permit continued manage
ment of local districts by local boards.
Schools must be run on a community
basis. They can’t be run successfully
from Washington or even from Aus
tin (Texas).
“Experience in separating children
on a language basis has proved to us
that where the responsibility is put
upon the local community, they work
honestly to resolve differences.
“Anything which schools do ef
fectively must be done with local
support. We don’t care to tell others
how to run their schools, but we cer
tainly believe that our 2,000 problems
can be resolved best if the Supreme
Court leaves control in local dis
tricts.”
Two presidents of Texas Negro col
leges were quoted as saying that
these schools should be expanded. Dr.
R. O’Hara Lanier, president of Texas
Southern University, a state-sup
ported college at Houston, said that
for many years to come most Negroes
will prefer to attend institutions,
equal in every respect, where they
will have a chance to become leaders
and to take part in all phases of cam
pus life. A similar view was expressed
by Dr. E. B. Evans of Prairie View
A. & M. College, also state-supported.
The attorney general included the
results of a survey made by his staff
of 152 school administrators in Texas,
including 14 Negroes. Seventy-seven
replied that 85 per cent or greater of
the students would continue to attend
the same schools if given a free
choice. Three Negro administrators
said their pupils would prefer to at
tend integrated schools.
RESULTS OF POLL
Mr. Shepperd also showed the tally
made by the Texas Poll, a private or
ganization used by newspapers in
sampling opinion concerning current
events. It reported on Sept. 12, 1954:
“1. 71% of the Texas people are
definitely opposed to the Supreme
Court’s decision.
“2. What should be done about the
problem? 7% favor putting the
Court’s ruling into effect immediate
ly, and another 23% believe plans
should be made to bring the races to
gether in the schools within the next
few years. A majority of 65% goes on
record in favor of continued segre
gation notwithstanding the Court’s
decision. The breakdown on this
problem is:
“In the entire public, Negroes ac
count for about 12% of the popula
tion; Latins, about 11%; and other
whites, about 77%.”
Mr. Shepperd reported that many
suggestions have been made for al
tering Texas public schools as a re
sult of the Supreme Court decision
that segregation is unconstitutional.
“It does not necessarily follow that
integration of the white race with the
colored race in the field of education
is compelled by the constitution,” the
Texan wrote. “If, under the Four
teenth Amendment, all citizens are
entitled to equal protection of the law,
which was premise for the Supreme
Court’s decision, then integration can
no more be compelled than can seg
regation.
Provision for domestic tranquility in
the exercise of the police powers of the
State premised the original laws requir
ing segregation. To maintain public peace,
good order and domestic tranquility,
these same police powers of the State
could be exercised, calling for another
and different provision relating to public
education.
Realizing this, and that the need for
compulsion no longer exists, another plan
suggests that the section of the law which
provides for compulsory education should
be repealed and the laws providing that
the state furnish free education to all
should be left undisturbed. Then the
present laws should be amended to al
low the parent or guardian of the child
desiring to take advantage of free educa
tion to express his own desires and
preferences as to the type of school the
child should attend. The parent, or guar
dian could select a school in which the
majority of the other pupils are of the
same race as the child, or he could select
a school in which the other pupils are of
both races, thereby providing equality of
opportunity and freedom of individual
choice.
This change would remove the unconsti
tutional compulsion of segregation, and
at the same time the state would be in a
position of honoring the individual pref
erences of its people.
Another plan advanced is that of al
lowing voluntary transfers between
school districts, and it is based upon the
same principle as the foregoing.
In complying with the mandatory du
ties placed upon the legislature of the
State of Texas by the Constitution of the
State of Texas, the legislature has by gen
eral law established, supported and
maintained a seregated public free school
system. These laws of the State of Texa!
are not before the court in these causes
and the State Board of Education has
ruled that the schools of Texas should
continue to be operated in the same man-
ner until otherwise directed.
Since the end of World War II, Texas
together with many of our states, has
been confronted with the enormous task
of providing adequate school housing f ot
a shifting and rapidly increasing popula.
tion. In areas predominantly populated
by white students schools have been built
to house these students. In areas pre-
dominantly populated by colored students
schools have also been built to house
them.
Utilization of all present school hous-
ing to the fullest extent in this State will
be an absolute necessity. Texas is also
confronted with the difficult problem of
providing adequate facilities for the an-
ticipated increase in its scholastics in the
interim between now and 1960. Statistics
reveal that at the close of the 1958-1959
school year $849,344,922 will be needed
over and above the presents needs to
care for the increase in population and
replacements costs on existing facilities.
Of this amount, only $394,858,052 can
be anticipated from local funds, leaving
a balance of $450,486,870, which must be
derived from another source to care for
the needs of the school children for the
school year of 1960. The school system is
presently overcrowded with certain
school-age groups being separated into
morning and afternoon classes to offset
this condition.
It can readily be seen that if Texas at
tempted an immediate integration, the
perplexities confronted in accomplishing
the same would be overwhelmingly multi
plied. Additional facilities are needed
and will have to be supplied by local bond
issues. It is highly speculative as to
whether such bond issues would be voted
to house an integrated school system
which an overwhelming majority of the
people oppose. The election calls for
freedom of choice and no mandamus ac
tion could be maintained to force an
affirmative vote.
At this time it would be highly im
practicable to eliminate any of the pres
ent school housing, and great considera
tion must be given to the natural and
presently existing boundary lines which,
of course, is the prime consideration for
the Legislature or the local school board.
A gradual transition to an integrated
public school system is not a denial of
relief or of the constitutional rights
enunciated by the Court.
The Texas brief asked the Court to
let U. S. district judges write the de
crees putting the May 17, 1954, deci
sion into effect. Such courts are fa
miliar with local conditions and could
provide a continuing supervision over
the program of non-discrimination,
Mr. Shepperd said.
The attorney general and eight as
sistants signed the brief.
ADDITIONAL DATA
One appendix analyzed the replies
received in the attorney general’s
survey of Texas school administra
tors. Another listed by counties the
number of white and Negro scholas
tics for this year.
One appendix analyzed the replies
received in the attorney generals
survey of Texas school administra
tors. Another listed by counties the
number of white and Negro scholas
tics for this year.
Shepperd had intended to in
clude the results of an opinion poll
among students in Marshall and Waco
high schools. But the poll was called
off, after it was made public in Mar
shall. The attorney general said that
publicity would affect the opinion
sampling.
Meanwhile, U. S. District Judge
Joseph W. Sheehy at Texarkana dis
missed a segregation suit brought by
nine Negroes seeking admittance to
the Texarkana Junior College, a pub
lic college.
The lawsuit was filed nearly seven
years ago. Judge Sheehy said the ap
plicants failed to prove they were
scholastically eligible to enter the
school, and that his opinion would
apply regardless of race. The nine
Negroes graduated from Dunbar
High School at Texarkana. They of
fered no testimony at the trial to
prove that the high school was full?
accredited for college entrance.
Lawyers for the Negroes said an
appeal will be made to the U. S. Cir
cuit Court of Appeals at New Ot-
leans.
BAPTIST RESOLUTION
While most Texas church group 5
which have spoken recently on th e
subject inclined to favor racial int e "
gration, or at least not to advocate
segregation, one Baptist associating
has come out firmly for continued
segregation.
The Missionary Baptist Association
of Texas, made up of about 30d
(See TEXAS on Page 15)