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PAGE 6—August 1955—SOUTHERN SCHOOL NEWS
Three-Judge Court Hears Remanded Clarendon Case in S. C.
COLUMBIA, S.C.
three-judge federal court, meet-
in Columbia on July 15, has
brought the Supreme Court man
date on desegregation home to the
Clarendon County defendants who
had been awaiting some implementa
tion decree as to the when and how
of last year’s May 17th decision.
In a brief decree, borrowing heav
ily from the Supreme Court’s own
language of May 31, 1955 in remand
ing the Clarendon County case to the
district court, the three judges or
dered the defendants to proceed with
all deliberate speed toward the re
moval of racially discriminatory bars
to pupil admission. However, the
three-judge court did not set any
time limit within which compliance
must be achieved.
At the same time, the court filed
along with the decree an opinion
which specifically left open a course
of voluntary segregation. That opin
ion was read as an opening statement
from Circuit Judse John J. Parker,
of Charlotte, senior member of the
three-judge court. It was subscribed
to as a per curiam statement by Cir
cuit Judge Armistead M. Dobie. of
Charlottesville, Va., and District
Judfe George Bell Timmerman, of
Columbia.
The decree issued bv the court was
not to the initial liking of counsel
for either side, but after further ex
planation bv Judge Parker and d : s-
cussion between the court and the
attorneys, the lawyers for plaintiffs
and defendants alike indicated great
er acceptance. The NAACP counsel
said his first inclination had been to
seek a time limitation on comoliance
with the desegregation order, but
that the plaintiffs were willing to ac
cept the general language of the three
judges’ decree.
For the defendants, Atty. Robert
McC. Figg Jr., of Charleston, pre
sented an 18-point petition predi
cated on the school district’s convic
tion that time and studv were re
quired in order to cone with the prob
lem. A maior element of that netition
was a plan whereby the trustees are
to engage a team of educat ; ona1 and
sociological specialists, probahlv from
the University of North Carolina, to
survey the Summerton situation.
NEED FOR TIME
In issuing its decree, the district
court made no reference to the peti
tion or to the survey plan, but the
Summerton officials presumably will
carry through the survey as an
nounced. Figg stressed the need for
time to solve the problem in the par
ticular district, where Negro chil
dren outnumber whites by about nine
to one. The attorney said:
“The Supreme Court would never
have rendered the decision of May
31 if they did not mean school dis
tricts to have time. And if this school
district is not entitled to time, then
no school district is entitled to time.”
Although he finally acceded to the
court’s broadly-worded decree, Mar
shall contended in his argument that
desegregation actually could be ac
complished in the Summerton dis
trict by the coming September. At
one point he said flatly:
“I take the position of a lawyer
operating under the 14th admend-
ment that the racial percentage one
way or the other is unimportant.”
At the conclusion of the July 15
hearing of the Clarendon County
case, South Carolina’s Atty. Gen. T.
C. Callison said the way apparently
was left open for the Summerton
schools to be operated as usual dur
ing the coming year on a segregated
basis. He added, however, that ulti
mately:
“It is going to be impossible, in my
opinion, to operate free public schools
on a segregated basis without being
in conflict with the ruling of the
court.”
He also remarked that if the Sum
merton officials do not want to com
ply with the order, they will have
to abandon the public schools.”
PETITIONS FILED
Meanwhile, several other school
boards about the state have received
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Decree ‘Localized’
The hearing Friday was hut an
other phase of the proceedings. But
it was an important one. The de
cree of the highes tribunal has been
localized. The three-judge court
followed the evident thinking of
the Supreme Court that time should
be allowed, but at best this is just
a postponement of the day when a
showdown will come.
There was nothing in the decree,
or in anything said from the bench
by the three jurists, that would in
dicate that the decree having been
issued, they will forget it. But any
overt objection will have to come
from the plaintiffs.
We see nothing to indicate that
the schools should not start in Sep
tember on the dual basis, and con
tinue for the 1955-56 session in that
status. This seems assured. We
couldn’t imagine an order from the
court to make any change while the
term is in progress; nor would we
think that counsel for the plaintiffs
would ask such intervention. Be
yond this, we venture no forecast
as to the future.—The State
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petitions asking for reorganization of
local school establishments on a non-
discriminatory basis. Already filed
within the last few weeks have been
such petitions in the city of Charles
ton, District One in the county
of Florence, District Five in the
county of Richland, with others mo
mentarily expected in Beaufort and
Greenville Counties.
In most instances, the petitions cite
the Supreme Court decisions of 1954
and 1955 and call for a reorganiza
tion of the school systems so as to
eliminate assignment requirements
based on race. They likewise state
that “the time for delay, evasion or
procrastination is past.”
No such petitions have received
favorable action from school officials.
Some have been received as infor
mation; some are scheduled for re
view at upcoming meetings of school
boards, and at least one request for
consultation has drawn a reply stat
ing that responsibility for operating
the district schools cannot be shared
with the NAACP or attorneys for that
organization.
OTHER MATTERS
In closely related fields of legal ac
tivity, segregation has figured prom
inently in matters of transportation
and recreation.
The Fourth Circuit Court of Ap
peals on July 14 ruled against racial
segregation on city buses on grounds
that the “separate but equal” doc
trine can no longer be regarded as a
correct statement of the law. The case
arose in the City of Columbia and
was dismissed earlier by Judge Tim
merman, who would not apply the
Supreme Court’s school segregation
ruling to the instant case in city bus
transportation.
His ruling was reversed, however,
and the case remanded for further
proceedings. It is identified as Sara
Mae Fleming vs. The South Carolina
Electric and Gas Company. The
plaintiff was ordered to move to the
rear of a city bus in Columbia and
to use the rear door as an exit.
In reversing the district judge, the
Circuit Court of Appeals said this of
the Plessy vs. Ferguson case (which
formally established the “separate
but equal” doctrine):
“That case recognizes segregation
of the races by common carriers as
being governed by the same princi
ples as segregation in the public
schools; and the recent decisions (of
the Supreme Court) which relate to
public schools leave no doubt that the
separate but equal doctrine approved
in Plessy vs. Ferguson has been re
pudiated. . .
The state’s attorney general has
declared that state laws requiring
separation on public carriers remains
in effect until the case has been dis
posed of finally. It has been remand
ed to the district court and may yet
be appealed back up through the fed
eral courts.
The segregation controversy has
spilled over into still another fringe
area of legal action affecting South
Carolina. President Eisenhower’s ap
pointment of Solicitor General Simon
E. Sobeloff to the Fourth Circuit
Court of Appeals touched off protests
in South Carolina. This state, accord
ing to the custom of rotating judge-
ships among the states which com
prise the Fourth Circuit, was due for
an appointment to fill the vacancy
left by the retirement of Judge Mor
ris A. Soper.
Opposition to Senate confirmation
of Sobeloff is building up in Congress,
with both South Carolina senators,
Olin D. Johnston and Strom Thur
mond, openly voicing their disap
proval of the appointment. The crit
icism of the appointment is based not
only on South Carolina’s again be
ing by-passed in the choice of a cir
cuit judge, but of the President’s se
lection of an individual who appeared
before the Supreme Court in opposi
tion to the Southern position on
school segregation.
South Carolina’s special committee
studying the school segregation prob
lem continues to meet periodically,
but makes no disclosure of its plans
or findings. It has met once since the
July 15 district court hearing, but
had no comment for the public.
Among persons appearing before
the committee at its last meeting was
a prominent Columbia attorney, Ir
vine F. Belser, who is a special as
sistant attorney general for the state’s
Public Service Commission. Mr. Bel
ser earlier in the month had made
public (through a letter to The State
newspaper) a school segregation plan
involving these essentials:
Continued operation of public
schools on a mixed basis for those
willing to attend mixed schools. Pres
ervation of segregated schools for
others through the agency of private
institutions or of cooperative educa
tional associations.
Gov. George Bell Timmerman Jr.:
“The (anti-segregation) movement
in the South is a political movement.
The court decision was political.” La
ter, on the President’s appointment
of Solicitor General Sobeloff to the
Circuit Court: “By his action, the
president has showed complete dis
regard for established custom and is
playing cheap politics with the lives
of little children. The administration
has ordained another high priest to
preside at the sacrificial offering of
the South on the political altar in an
effort to convert into the Republican
camp the bloc support of ethnic
groups in the large industrial states.”
Judge J. Henry Johnson, of the
South Carolina Circuit Court: “The
Negroes have won their victory in
the court, but they have to think for
themselves” in deciding how to con
duct themselves following that rul
ing. Judge Johnson described the
Supreme Court as the “weakest” in
the history of the nation and warned
Negroes to stop blindly following
Thurgood Marshall and other leaders
“who are getting rich at their ex
pense.”
Prof. Alphonso S. Powe, Depart
ment of Sociology, Allen (Negro)
University at Columbia: “It seems
reasonable to assume that if the local
school authorities would make the
schools in all sections of their dis
tricts adequate from the point of view
of physical equipment and teaching
personnel, most Negroes would take
pride in the growth and development
of schools in the districts that were
predominantly Negro. In such a sit
uation there would be close coopera
tion between all of the schools in ac
tivities pertaining to the general wel
fare of the community. This might
include curricular as well as extra
curricular activities.”
MISCELLANEOUS
Several local organizations aimed
at preserving racial segregation met
during recent weeks in South Car
olina, or laid plans for early meet
ings for purposes of organization or
discussion. The Florence States
Rights League has called a meeting
for late July to discuss a petition re
cently filed with the Florence school
board, asking for admission of Ne
groes to schools in the district.
The States Rights Leagues are
sponsoring an Aug. 4 address, at
Sumter, by former Gov. Herman T.
Talmadge of Georgia.
A States Rights League of the
Greater Charleston area was organ
ized July 19 with the announced aims
of defending segregation, protecting
the schools, and regaining states’
rights. On July 18, a group of white
men of the Harleyville community
(Dorchester County) made prelim,
inary plans for an organization to
fight integration in public schools.
ROCK HILL PETITION
A petition bearing 300 signatures
from persons in the Rock Hill ares
was sent to Sen. Olin D. Johnston
in support of his resolution calling
for an investigation of material relied
upon by the Supreme Court in reach
ing its segregation ruling.
In the Charleston area, letters to
the editor of the News and Courier
have given a fair measure of en-
dorsement to proposals aimed at sub-
sidizing the exodus of Negroes from
the South into other parts of the na
tion.
S. C. Proceedings
Following is a partial transcript of
the Clarendon County case as re
manded to a three-judge federal court
in Columbia, S. C., for hearing July
15. Serving on the court were Judges
John J. Parker, Armistead M. Dobie
and George Bell Timmerman. Attor
neys for the Summerton school dis
trict were Robert McC. Figg and S. E.
Rogers. Lawyers for the plaintiffs
were Thurgood Marshall, Harold R.
Boulware, Spottswood Robinson III
and Oliver W. Hill.
JUDGE PARKER: This is a United
States Statutory District Court of
three judges convened to consider the
decree that shall be entered in Civil
Action 2657, Harry Briggs, Jr. and
others against R. W. Elliott and oth
ers. The court makes this statement:
This court in its prior decisions in
this case followed what it conceived
to be the law as laid down in prior
decisions of the Supreme Court that
nothing in the Fourteenth Amend
ment to the Constitution of the Unit
ed States forbids segregation of the
races in the public schools provided
equal facilities are accorded the chil
dren of all races. Our decision has
been reversed by the Supreme Court,
which has remanded the case to us
with direction “to take such proceed
ings and enter such orders and de
crees consistent with this opinion as
are necessary and proper to admit to
public schools on a racially non-dis-
criminatory basis with all deliberate
speed the parties to these cases.”
Whatever may have been the views
of this court as to the law when the
case was originally before us, it is
our duty now to accept the law as
declared by the Supreme Court.
Having said this, it is important
that we point out exactly wnat the
Supreme Court has decided and what
it has not decided in this case. It has
not decided that the federal courts
are to take over or regulate the public
schools of the states. It has not decided
that the states must mix persons of
different races in the schools or must
require them to attend schools or
must deprive them of the right of
choosing the schools they attend.
What it has decided, and all that it
has decided, is that a state may not
deny any person on account of race
the right to attend any school that
it maintains. This, under the decision
of the Supreme Court, the state may
not do directly or indirectly but, if
the schools which it maintains are
open to children of all races, no vio
lation of the Constitution is involved
even though the children of different
races voluntarily attend different
schools, as they attend different
churches. Nothing in the Constitu
tion or in the decision of the Supreme
Court takes away from the people
freedom to choose the schools they
attend. The Constitution, in other
words, does not require integration.
It does not forbid such segregation as
occurs as the result of voluntary ac
tion. It merely forbids the use of
governmental power to enforce seg
regation. The Fourteenth Amend
ment is a limitation upon the exer
cise of power by the state or state
agencies, not a limitation upon the
freedom of individuals.
The Supreme Court has pointed out
that the solution of the problem in
accord with its decisions is the pri
mary responsibility of school authori
ties and that the function of the courts
is to determine whether action of the
school authorities constitute “good
faith implementation of the govern
ing constitution principles” . .
The court is convened to hear any
concrete suggestions you may have
to make as to the decree that it should
enter. Now, that brings you up to
date as to the position of this court.
Are there any motions in the case?
®
MARSHALL: May it please the
court, we have a motion for inter
vening plaintiffs in the case, and
notice has been served on the other
side. At this time we would like to
present the motion.
JUDGE PARKER: What is the
ground of the motion?
MARSHALL: It is that these are
school children of regular school age
attending school in School District
No. 1 and want to intervene at this
stage in order that their rights may
be fully protected.
JUDGE PARKER: Do you take the
position that this is a class action?
MARSHALL: Yes, sir.
JUDGE PARKER: What is the
necessity for their intervention if it
is a class action?
MARSHALL: Because we believe
that during the long pendency of this
case, there are considerable children
that have passed out of the school
system, and we want to have a good
cross-section of plaintiffs. And, as a
class action, we consider that they
are already members of the class, but
we just don’t want any question about
it.
JUDGE PARKER: Have you any
objection to it?
FIGG: No, we do not object to that
motion...
JUDGE PARKER: All right. The
motion is allowed. What is your next
motion?
•
FIGG: I would like to read ®y
petition, if Your Honor would permit
me to do it.
“The Petition of J. D. Carson.
Chairman, W. C. Sprott, W. A. Brun
son, R. H. Elliott, and R. P. Felder.
Members of the Board of Trustees o
School District No. 1, Clarendon
County, South Carolina, respectful^
shows unto the Court:
“That under the South Caroling
educational legislation of 1951. Scho®
District No. 22, of Clarendon Coun ■
as to which school district this fUI
was originally instituted, was
solidated with a number of °tb
school districts in Clarendon Coun
into School District No. 1 of the sai
county... {oT
“That by means of state aw ^
capital construction obtained
School District No. 1 under the ^
legislation above referred to, _
board of trustees brought a „
equality of physical facilities an
other ‘tangible’ factors in theP u
school system of the district. T e
titioners show that in the opera
of the schools under their c°r>^_,
during the school year .54"
they afforded efficient public e . ;S
tional advantages and opportu ^
to all of the school children o
in the reorganization
chool system of 5> cho ° jjs-
i. 1 upon a racially n (0
tory basis in endeavori S ,,.
with the Supreme Co^
s, the petitioners as the ^
?es of the school distort ^
ith almost every obstaci ^
that has been or c
ontinued on Next Paf?