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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)