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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.”