Newspaper Page Text
PAGE 2—April 7, 1955—SOUTHERN SCHOOL NEWS
Alabama
MONTGOMERY, Ala.
JNDICATIONS are that the No. 1
problem facing the Alabama
legislature when it convenes for the
regular biennial session in early May
will be schools—new classrooms,
pay raises for teachers and the
question of how to meet the Su
preme Court’s integration ruling.
The legislators were in special
session in January, February and
March but their attention was con
fined to Gov. James E. Folsom’s
reasons for calling the special ses
sions—roads and welfare—items
which Folsom had placed high
among his campaign promises last
year. Although Folsom had assigned
top priority to these matters, he
served notice in Birmingham March
24 that the state’s educational needs
would be next.
As the legislators in Montgomery
were finishing up the work of the
second consecutive special session,
Folsom told teachers attending the
annual convention of the Alabama
Education Association in Birming
ham that he will back an expanded
school building program with
special emphasis on meeting needs
of Negro children. He said:
“I want to get them (Negro chil
dren) out of ‘shotgun’ shacks and
put them in adequate buildings. I
have said repeatedly that many
counties have provided for the hous
ing of their Negro children. Others
have not.”
Folsom said counties that haven’t
met the needs of Negro children
should raise local revenue for that
purpose and let the state come to
their aid on an “equalization” basis.
Folsom made no mention of any
specific amount needed for school
construction, but state education
leaders, led by State Superintendent
of Education Austin R. Meadows, are
advocating a 150 million dollar bond
issue for that purpose.
REFERS TO DECISION
While pointing to the overall edu
cation problem in Alabama, Gov.
Folsom made one of his few specific
references to the Supreme Court’s
decision invalidating segregated
classrooms. He said:
“Due to high court rulings of
recent months—as well as more yet
to come—there is a certain degree
of anxiety existing in the educa
tional fields.
“I would like to remind you that
we always hear more noise from
those who are guided by blinded
prejudice and bigotry, than is ever
the case with those who try to think
through and be fair in their ap
proach.
“If there was ever a time on the
American educational front when we
needed wisdom and tolerance and
objective thinking—it is certainly
now.”
Gov. Folsom said school expendi
tures doubled during his first admin
istration, adding, “I hope to do as
well during this four years.” He
stressed the need for a teacher pay
raise to stop the exodus of Alabama
teachers to other Southern states
paying higher wages (Southern
School News, March 3). An addi
tional 13,594 classrooms are needed
to care for a record school enroll
ment, Folsom said.
“We might as well gird ourselves
to cope with this deserving situation.
It is going to take money to build
schools. Some help may come from
the federal government but largely
it is a responsibility of Alabama,”
he added.
At the close of the AEA sessions,
Dr. Meadows said that 100,000 Ala
bama school children are being
taught by inexperienced, unqualified
teachers who have been issued
emergency certificates because of the
shortage of trained personnel willing
to work on Alabama’s pay scale.
PLAN CALLED INVALID
Late in February, the report of the
special legislative committee set up
by the 1953 legislature to study
school segregation was formally pre
sented to the legislature. The com
mittee, headed by Sen. Albert Bout-
well of Birmingham, made its find
ings and recommendations public
last fall (Southern School News,
Nov. 3). On the basis of the Bout-
well committee’s initial report to the
legislature, a prominent Alabama
legal scholar, Prof. Jay Murphy of
the University of Alabama Law
School, called the committee’s chief
proposals unconstitutional. A reprint
of the article was released to the
press as the committee’s formal re
port went to the legislature.
Writing originally for the Univer
sity of Alabama Law Review, Prof.
Murphy commented in some detail
on the committee’s conclusions and
recommendations, which included:
(1) Amendments to various sec
tions of the Alabama constitution to
permit the state to discontinue public
schools wherever necessary to avoid
“friction or disorder,” and to allow
the state to allocate public money to
the aid of “private” education when
“public facilities are lacking or in
adequate, or public operation in
volves the adoption of coerced poli
cies.”
(2) A plan “permitting a degree
of individual choice of the kind
which parents in any area may de
sire. If, for any reason, the sys
tem does not result in an acceptable
or workable solution, then the public
schools involved may be discontinued
and the education of the pupils con
cerned aided or provided for by in
dividual public assistance.”
CALLED ‘LAST RESORT’
Boutwell has emphasized that
public schools would be abolished
only as a “last resort” to maintain
peace and order. Running through
the committee’s recommendations
there is, in fact, the suggestion that
mixed schools might be allowed in
some areas if acceptable to all con
cerned and to the legislature. The
proposed legislation would grant the
legislature “flexibility and discretion
ary power” to meet any situations as
they might arise, Boutwell has said.
In his article, “Can Public Schools
Be ‘Private’?” Prof. Murphy con
cludes:
“To adopt the constitutional
amendment proposed (by the Bout
well committee) as a means of re
versing the Brown case would be
to divert and thus waste the con
structive energies of this state in
searching for solutions to this prob
lem, because constitutional amend
ments such as those proposed (by
the Boutwell committee) would
certainly be declared unconstitu
tional. This is said without qualifi
cation because the constitutional
problem is an obviously simple one.”
The Boutwell recommendations
are only one example of proposals
by southern states to abolish public
schools or to conduct them as state-
supported private schools, Murphy
says. He calls attention to a section
of the committee’s report which
says:
“The power should be delegated
by the legislature to the local school
authorities as a final resort to dis
continue public schools and instead
grant public aid, such as tuition and
transportation, directly to the pupils,
white and Negro, and enable them to
attend private schools where, of
course, there would be no compul
sory mingling. This could be done
without impairment of teachers’
tenure, pensions or other rights.”
REPORT INTERPRETED
Murphy interprets this to mean:
“(1) The public school system
would remain about as it is now,
but (2) white people and colored
people may elect to attend public
segregated schools, and (3) some
public unsegregated schools may be
conducted for those persons willing
to attend them, but (4) if Negroes
seek, against the will of the white
persons, to force their admission to
white schools, then the state in the
interest of preserving harmony,
efficiency and good order, would
be under no duty to furnish educa
tion to such persons under such un-
harmonious conditions. And as a last
step to prevent the use of public
schools under such conditions of
disrupted order, the legislature may
delegate to local authorities the
power to discontinue public schools
and to grant aid to both Negro and
white children to permit them to
attend segregated private schools.”
The constitutional question, Prof.
PROF. JAY MURPHY
Critic of Boutwell Plan
Murphy says, is whether or not
such a plan violates the equal pro
tection clause of the Fourteenth
Amendment, or: Can state money
be used to send students to private
segregated schools “and thus evade
the effect of the Brown decision?”
Other questions are these, he says:
“(1) May a state maintain segre
gated schools where the segregation
is not imposed by statute, but where
it exists by the free will of the
parents and students? Here the
problem might be whether, as a
matter of fact, the decision would
be by the free will of the colored
parents and children, since the en
vironment might be such that they
would be afraid to exert such free
will.
“ (2) May a state give up its edu
cational activities? The answer to
this question is not as easy as it
seems. It would appear that a state
could go out of the business of edu
cation. But if it did go out of this
business and aided private groups in
continuing segregated education, as
by donating buildings and facilities
to them, then such aid clearly would
appear to be state action prohibited
by the Fourteenth Amendment.”
To begin with, Murphy says, the
Boutwell committee was faced with
“an impossible task.” The problem
is one of the most profound of our
times, he says, and “it certainly
could not be solved by a small com
mittee of lawyers. Let any lawyer
read . . . the Brown decision . . .
and ask himself whether or not the
state may evade the decision by a
plan which would, in effect, merely
change the name of the schools from
‘public’ to ‘private.’ ”
CITES PRECEDENTS
Developing his thesis that mere
labeling as “private” does not alter
the fact of public education, Murphy
cites a number of cases in which
the Supreme Court has detected
“state action” in allegedly private
activities. He discusses:
Smith vs. Allwright (321 U.S. 649)
in which the Supreme Court held
unconstitutional the denial of Negro
participation in primary elections
where the Texas legislature had
granted to the Democratic Party or
the state the power to make its own
rules concerning the holding of elec
tions; Rice vs. Elmore (165 F.2d 387)
in which the Supreme Court ruled
similarly on a South Carolina statute
repealing all primary legislation and
empowering the Democratic Party
with the right of making its own
private rules; Terry vs. Adams (345
U.S. 461) in which the Supreme
Court invalidated an arrangement
in a Texas county whereby a private
association of white persons con
ducted private nominations for
public office, and the officers selected
always ran in the Democratic pri
mary and always won.
“It is difficult to see,” Murphy
reasons, “how the same court would
approve a similar effort (as that pro
posed in the Boutwell committee’s
recommendations) to circumvent the
equal protection clause of the Four
teenth Amendment.”
Beyond these decisions is the 1948
case of Shelley vs. Kraemer (334
U.S. 1) in which the court prevented
the judiciary from enforcing racial
restrictive covenants. “This reveals,”
Murphy says, “that the court is pre
pared to go to extreme limits in
discovering state action which might
in any way cause racial discrimina
tion.”
After citing a number of similar
cases, he concludes that in none of
them is there “the remotest indica
tion that, with the separate but
equal doctrine now abolished in
public education, the state might
simply change the names of its
schools and keep on functioning on
a segregated basis, or provide funds
to private schools and permit them
to function on a segregated basis, or
provide funds to students to provide
funds to private schools.”
ADVANCE RULING SEEN
Alabama’s recent experience with
the Boswell amendment “as a device
clearly designed to prevent the
Negro from voting reveals that the
judiciary will look beyond the
statute to see an unconstitutional
purpose,” he argues.
As for the Boutwell committee’s
recommendation that members of
state, city and county boards of
education be designated as “judi
cial officers” and thus immune from
lawsuit, Murphy says:
“This proposal is apparently based
on the assumption that in some
mysterious way the magic word
‘judicial’ will protect such officers
from criminal and civil suits, and
permit them greater freedom of
action than they otherwise would
have. . . . Indeed, if a state by the
simple process of calling a person
a judicial officer could extend the
immunity often granted to judges
in their official conduct, then by the
simple process of calling all police
men ‘judicial officers’ the third de
gree would be more respectable.”
Answering the committee’s warn
ings that legally enforced integra
tion would produce such violence
and tensions as to make it imper
ative that the state exert its police
powers to prevent racial mixing,
Murphy says:
“It seems that the fear of violence
is a principal foundation for the
committee’s recommended action by
the state . . . [But] the state would
be required to show that conditions
were such as to be beyond the
capacity of the state and the com
munity to control after all reason
able efforts to maintain order had
been undertaken ... If the state
in good faith cannot maintain order,
there are always the facilities of the
federal government.”
SUGGESTS PERMANENT STUDY
After dismissing the Boutwell
recommendations as unconstitution
al, Murphy suggests that the money
it would take to adopt the measures
could be used to set up a continuing
study group to explore all aspects
of the problem. Among the members
of the study group he suggests there
be specialists in race relations, edu
cation and psychology; business,
labor, agricultural and community
leaders who have had experience
with the race problem; religious
leaders; lawyers, legislators and
officials of the government. The
group should be composed of mem
bers of both races. They would
organize a statewide fact-finding
research and study program.
“This is an unprecedented prob
lem,” Murphy says,” and it calls for
unprecedented action.”
ANSWERS ARGUMENTS
In addition to his treatment of the
legal questions involved in the com
mittee’s recommendations, Murphy
comments at some length on the in
cidental theories, conclusions and
arguments contained in the commit
tee’s report. Some of these and
Murphy’s comments follow:
To the committee’s assumption that
widespread violence would follow
attempts at general integration:
“The prediction . . . appears to be
exaggerated since the changeover
in any event would be gradual.”
To the committee’s statement that
a vast majority of Negro citizens in
Alabama oppose compulsory integra
tion:
“If this statement will influence
the legislature in acting one way
or another, it is believed that the
legislature should ask the Negro
citizens how they feel. So far as the
writer knows the committee did not
do so.”
To the committee’s statement that
there is “no dormant attitude c :
hostility” between the races in tk
state:
“If the legislature will be infl„,
enced by this fact then it is sug.
gested that appropriate materi^
from studies in race relations an c ’
the psychology of the two race,
concerning the race issue be con!
suited and presented to the legist,
ture. There is no evidence that the
committee conducted such studies
Realistically, it would be of interes
to know the types and numbers oi
Negro citizens with whom the com.
mittee discussed race relations. This
point is a vital one. The state j$
faced with one of the most difficult
problems in history, and the intelfi.
gent solution of it will partly depend
upon getting the facts. What, in fact
is the attitude of the Negro citizen
toward the white citizen, and vice
versa? If the Brown decree means
that the races must associate in s
new area, then what attitude does
each race bring to this association?
It is submitted that the statement
by the committee to the effect that
there is no hostility between the
two races is subject to serious doubt.
If so, then the problem now is how
to overcome enough of this hostility
to create cooperation on another
level since there is a constitutional
mandate that this be done.”
To the committee’s observation
that integration would result in
economic reprisals against Negroes:
“Some of this is to be expected,
but it would be of interest to poll
all of those who deal economically
with Negro citizens, and who are
dependent upon the cheap labor
furnished by them to see the eco
nomic effects which may be expected
to result from integration.”
To the committee’s assertion that
“there are profound psychological
and cultural differences, including
differences in aptitudes, between the
white and Negro races in Alabama”:
“If the committee means that one
race is inherently superior or in
ferior to another then this, of course,
is not supported by scientific au
thority . . . The report is accurate
when it says there are ‘cultural
differences.’ This means that as a
general rule Negroes and whites live
in different environments, have dif
ferent kinds of houses, eat different
food, have different jobs, etc. This
is the first time the writer has seen
it seriously proposed that constitu
tional rights depend for their exist
ence upon cultural uniformity
Morever, everyone knows that one
reason why the Negro citizen lacks
the acquired educational skills, and
the respectable kind of jobs, in the
state is the fact that adequate edu
cational and job opportunities have
been denied him.”
To the committee’s contention that
Negro children in Alabama do not
suffer from “adverse phychologica-
effects” because of segregation, as
the Supreme Court had found:
“The committee is obviously
guessing at the ‘psychological
effects.’ They have not offered evi
dence to counteract the vast testi'
mony of psychologists given ®
these cases. Now, the psychologists
may be wrong, but the committee
should hardly expect the legislature
to accept as proof the committees
categoric denial.”
To the committee’s statement th** 1
the enactment of its recommend* 1 ,
tions would “not require any ra “ lC ‘
change in the public school syst*
in the state,” and that there w ° u * • ,
be no “impairment of teache
tenure, pensions and other rights
“This statement alone is suffi c * ea
to show that the state will cont ’fj C
to operate the school system an
be subject to the charge of s
action’ under the Fourte
Amendment.” . I
To the committee’s statement
“rather than allow any such tra
distortion of the function of P a ^
education, that function show ,
abandoned to the extent necess 3
to protect it in any locality : ^
“Under cases and doctrines c ^ e
above this would be impossible- ^ |
state may not have one km
education in one locality and ano
kind for another locality where^ ^
reason for the difference in |
based on racial discrimination.
would follow clearly undei
equal protection clause.”