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PAGE 14—April 7, 1955—SOUTHERN SCHOOL NEWS
Y ir ginia
MEMBERS OF FOURTH CIRCUIT COURT OF APPEALS
MORRIS A. SOPER
Full Text Of Circuit Court Opinion
JOHN J. PARKER
ARMISTEAD M. DOBIE
RICHMOND, Va.
‘C'NFORCED segregation of the races
in public parks and playgrounds
is a violation of the U. S. Constitution,
the United States Court of Appeals
for the Fourth Circuit ruled here
in a decision considered of far-
reaching importance.
The ruling was made in two Mary
land cases in which state authorities
had maintained that enforcement of
segregation in recreational facilities
was a proper exercise of the state’s
police power.
That contention had been upheld
by Federal Judge Rozel C. Thomsen
in a decision handed down at Balti
more in July, 1954. He had ruled
that the Supreme Court’s opinion
that segregated schools are uncon
stitutional did not apply to state and
municipal recreational facilities.
But the Circuit Court, handling the
case on appeal, disagreed.
“. . . It is obvious,” declared the
higher tribunal, “that racial segrega
tion in recreational activities can no
longer be sustained as a proper ex
ercise of the police power of the
state; for if that power cannot be
invoked to sustain racial segregation
in the schools, where attendance is
compulsory and racial friction may
be apprehended from the enforced
commingling of the races, it cannot
be sustained with respect to public
beach and bathhouse facilities, the
use of which is entirely optional.”
EFFECT IMMEDIATE
The decision had an immediate
effect here. The Richmond City
Planning Commission deleted from
the city’s proposed capital budget
for next year an item of $190,000
earmarked for the building of three
neighborhood swimming pools. The
commissioners took the view that
such pools should not be built, at
least not until the question whether
they can be used on a segregated
basis is finally resolved. Final ac
tion on the budget will be up to
City Council.
The Circuit Court’s decision also
was viewed by some persons here
as having a possible direct effect
on a suit pending in the Federal
District Court at Norfolk over segre
gation in one of Virginia’s public
parks.
Four Negroes filed suit in the
District Court in 1951 attacking seg
regation at the 2,770-acre Seashore
State Park located on the Chesa
peake Bay just west of Cape Henry.
That case was set for trial on April
26 of this year.
LEASE PROPOSED
On Feb. 25, however, Director Ray
mond V. Long of the State Depart
ment of Conservation & Develop
ment announced that the Seashore
park would be leased to a private
operator for the coming season.
“This action,” Mr. Long explained,
“was taken by the board with the
two-fold purpose of protecting the
state’s substantial financial invest
ment in Seashore State Park and of
assuring its continued use by the
more than 200,000 persons who each
year make use of the park’s facili
ties.”
He said the board’s authority for
leasing the park is contained in an
act of the 1950 General Assembly
authorizing such leases, subject to
the consent and approval of the
governor, when the “public interest
so requires.”
But the state’s plan to lease the
park was knocked in the head, at
least temporarily, by Federal Dis
trict Judge Walter E. Hoffman of
Norfolk.
RESTRAINING ORDER
On March 11 Judge Hoffman issued
an order temporarily restraining the
state from leasing the facility. The
injunction will be in force until
April 26, when the suit filed by the
four Negroes demanding use of the
park is scheduled to be heard.
During the injunction hearing,
Judge Hoffman asked Henry T.
Wickham, special assistant to the
attorney general:
“If the state of Virginia has
authority to lease a state park, would
it not be possible for a municipal
corporation to lease its public schools
to a private individual?”
When Mr. Wickham replied affir
matively, Judge Hoffman added:
“That’s the very thing that bothers
»
me.
Faced with the injunction, the
State Board of Conservation &
Development, in a secret, unan
nounced meeting on March 21, de
cided to go ahead with plans for
operating eight of the state’s nine
parks on a segregated basis during
the 1955 season. One of the parks,
in Prince Edward County, is for
Negroes; all the others are for white
persons.
The resolution adopted by the
board reads:
“The action of the director of the
Department of Conservation & De
velopment in deferring further con
sideration and action on the leasing
of Seashore State Park is hereby
approved, and the director is hereby
authorized with the sanction of the
board to proceed to operate the
remaining parks and recreational
areas under his jurisdiction on
schedule.”
MORE SUITS PREDICTED
Attorneys for the National Asso
ciation for the Advancement of
Colored People take the view that
the Circuit Court ruling in the Mary
land cases knocks out segregation
in Virginia’s parks. Attorney Oliver
W. Hill predicts “a series of law
suits” if the state continues to try
to maintain segregation in the parks.
Another court case—this one deal
ing specifically with the public
schools—figured in the news in
Virginia during March.
The case arose in West Point, Va.,
in 1952. The town at that time closed
its Negro high school and made ar
rangements to transport Negro stu
dents to a new county school about
18 miles away. A group of parents
refused to send their children to
the latter school and, instead, tried
to get them admitted to the white
high school in town. The Negroes
were not admitted, but they still re
fused to go to the Negro school.
PARENTS CONVICTED
Eight of the parents were con
victed for violating the compulsory
school attendance law, and the case
was appealed to the state Supreme
Court, where arguments were pre
sented by the opposing sides on
February 28.
Attorneys for the parents argued
that the new county school did not
provide facilities equal to the white
school in the town. They said the
Negro students were discriminated
against in being required to travel
18 miles to the county school, and
that segregation in itself was dis
criminatory.
Virginia’s Atty.-Gen. J. Lindsay
Almond Jr. argued that segregation
was not an issue in the case. The is
sue, he maintained, was the parents’
refusal to obey a valid law of the
state requiring them to send their
children to school.
The court took the case under
advisement.
OTHER DEVELOPMENTS
A number of other developments
relating to the segregation problem
occurred in Virginia during March.
The Virginia Council of Human
Relations, aimed at promoting
“greater unity in the South” and re
ducing “race tension, racial misun
derstanding and racial distrust,” was
formed here. It will be affiliated
with the Southern Regional Coun
cil, with headquarters in Atlanta,
and will be financed in part by the
Fund for the Republic, according to
the Rev. Carroll Brooke of Staunton,
who presided over the organizational
meeting as temporary chairman.
Mr. Brooke said the council is “an
educational group” and that it will
be involved in “no political activity.”
BI-RACIAL DISCUSSION
The immediate concern of the
council, he explained, will be the
problems raised by the Supreme
Court’s antisegregation decision. The
organization plans to promote small
bi-racial discussion groups in com
munities throughout the state in an
effort to reduce racial misunder-
The text of the decision of the
United States Court of Appeals,
Fourth Circuit, banning segregated
public recreational facilities is as
follows:
These appeals were taken from
orders of the District Court dis
missing actions brought by Negro
citizens to obtain declaratory judg
ments and injunctive relief against
the enforcement of racial segregation
in the enjoyment of public beaches
and bathhouses maintained by the
public authorities of the State of
Maryland and the City of Baltimore
at or near that city.
Notwithstanding prior decisions of
the Supreme Court of the United
States striking down the practice of
segregation of the races in certain
fields, the district judge, as shown by
his opinion, (123 F. Supp. 193) did
not feel free to disregard the decision
of the Court of Appeals of Maryland
in Durkee v. Murphy, 181 Md. 259,
and the decision of this court in
Boyer v. Garrett, 4 Cir., 183 F. 2d 582.
Both of these cases are directly in
point since they related to the field
of public recreation and held, on the
authority of Plessy v. Ferguson, 163
U.S. 537, that segregation of the races
in athletic activities in public parks
or playgrounds did not violate the
Fourteenth Amendment if substan
tially equal facilities and services
were furnished both races.
AUTHORITY SWEPT AWAY
Our view is that the authority of
these cases was swept away by the
subsequent decisions of the Supreme
Court. In McLaurin v. Oklahoma
State Regents, 339 U.S. 637, the Su
preme Court had held that it was a
denial of the equal protection guaran
teed by the Fourteenth Amendment
for a state to segregate on the ground
of race a student who had been ad
mitted to an institution of higher
learning.
In Henderson v. United States, 339
U.S. 816, segregation on the ground
of race in railway dining cars had
been held to be an unreasonable reg
ulation violative of the provisions of
the Interstate Commerce Act.
Subsequently, in Brown v. Board
of Education, 347 U.S. 483, segregation
of white and colored children in the
public schools of the state was held
standings. Virginia’s is the ninth such
Council of Human Relations to be
formed in the South, it was an
nounced.
Virginia’s Young Republican Fed
eration, meeting here, adopted a
resolution which read, in part:
“We believe ... in the Supreme
Court as the highest authority to
interpret the Constitution, [and] op
pose any attempt to circumvent or
violate the Constitution by legal or
quasi-legal devices.”
The resolution also put the Young
Republicans on record as supporting
a strong “system of free public edu
cation” for “all citizens” and as op
posing “ill-conceived efforts to de
stroy or decrease the effectiveness
of our public educational system.”
‘ECONOMIC PROGRESS’ SEEN
At Roanoke, Verbon Kemp, execu
tive director of the Virginia State
Chamber of Commerce, said in a
speech that the end of segregation
to be a denial of the equal protection
clause of the Fourteenth Amendment;
and in Bolling v. Sharpe, 347 U.S. 497,
segregation in the public schools of
the District of Columbia was held to
be violative of the due process clause
of the Fifth Amendment.
In these cases, the “separate but
equal” doctrine adopted in Plessy v.
Ferguson was held to have no place
in modem public education.
The combined effect of these deci
sions of the Supreme Court is to de
stroy the basis of the decision of the
Court of Appeals of Maryland in
Durkee v. Murphy, and the decision
of this court in Boyer v. Garrett.
The Court of Appeals of Maryland
based its decision in Durkee v.
Murphy on the theory that the seg
regation of the races in the public
parks of Baltimore was within the
power of the Board of Park Commis
sioners of the city to make rules for
the preservation of order within the
parks; and it was said that the
separation of the races was normal
treatment in Maryland and that the
regulation before the court was jus
tified as an effort on the part of the
authorities to avoid any conflict
which might arise from racial anti
pathies.
INTANGIBLE FACTORS
It is now obvious, however, that
segregation cannot be justified as a
means to preserve the public peace
merely because the tangible facilities
furnished to one race are equal to
those furnished to the other.
The Supreme Court expressed the
opinion in Brown v. Board of Educa
tion, 347 U.S. 492 to 494, that it must
consider public education in the light
of its full development and its present
place in American life, and therefore
could not turn the clock back to 1896
when Plessy v. Ferguson was written,
or base its decision on the tangible
factors only of a given situation, but
must also take into account the psy
chological factors recognized at this
time, including the feeling of inferi
ority generated in the hearts and
minds of Negro children, when sep
arated solely because of their race
from those of similar age and quali
fication.
With this in mind it is obvious that
racial segregation in recreational ac-
will, in the long run, “react to the
economic betterment of the South.”
He said integration will mean “eco
nomic progress” because it eventually
will put more purchasing power into
the hands of Negroes.
Mr. Kemp’s remarks drew an an
swer from William B. Cocke Jr.,
Sussex County clerk and secretary
of the Defenders of State Sovereignty
and Individual Liberties. He de
clared that the “issue of integration
should not be clouded by holding
out theoretical dollars as bait to
solicit support against the interests
of children of both races in this
state.”
The University of Virginia News
Letter for March 1 was devoted to
a study made by Sara K. Gilliam of
the university’s Bureau of Popula
tion & Economic Research, which
showed a fairly steady decline in the
proportion of Negroes in the total
tivities can no longer be sustained as
a proper exercise of the police power
of the state; for if that power cannot
be invoked to sustain racial segrega
tion in the schools, where attendance
is compulsory and racial friction may
be apprehended from the enforced
commingling of the races, it cannot
be sustained with respect to public
beach and bathhouse facilities, the
use of which is entirely optional.
EQUALITY BEFORE LAW
The decision in Bolling v. Sharpe
also throws strong light on the ques
tion before us for it admonishes us
that in approaching the solution of
problems of this kind we should keep
in mind the ideal of equality before
the law which characterizes our in
stitutions. The court said: (pp. 499-
500)
“Classifications based solely upon
race must be scrutinized with par
ticular care, since they are contrary
to our traditions and hence constitu
tionally suspect.
“As long ago as 1896, this Court de
clared the principle ‘that the Con
stitution of the United States, in its
present form, forbids, so far as civil
and political rights are concerned,
discrimination by the General Gov
ernment, or by the states, against any
citizen because of his race.’
“And in Buchanan v. Warley, 245
U.S. 60, the Court held that a statute
which limited the right of a property
owner to convey his property to a
person of another race was, as an un
reasonable discrimination, a denial of
due process of law.
“Although the court has not as
sumed to define ‘liberty’ with any
great precision, that term is not con
fined to mere freedom from bodily
restraint.
“Liberty under law extends to the
full range of conduct which the in
dividual is free to pursue, and it can
not be restricted except for a proper
governmental objective. Segregation
in public education is not reasonably
related to any proper governmental
objective, and thus it imposes on
Negro children of the District 0
Columbia a burden that constitutes
an arbitrary deprivation of their
liberty in violation of the due P r °'
cess clause.”
Reversed.
population of Virginia. ,
Figures for the per cent colored
were quoted as follows:
1799—43.4
1830—47.9
1860—43.3
1880—41.8
1900—35.7
1920—29.9
1930—26.9
1940—24.7
1950—22.2
The author of the study wrote-,
“The colored race traditionally
had a much higher birth rate
the white. Ordinarily it is enl P^
on this fact, without due conside ^
tion of the high colored death ra
and the net outward migration P
tern, which has led to the nrusco
ception that the colored populatio ^ „
the state is increasing at a rapid ra ^ e
She said that eventually, a s ^
Negro’s economic status impro^j
the growth pattern of that race
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