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SOUTHERN SCHOOL NEWS—MAY 1958—PAGE 9
Three-Judge Court in Alabama Hears
Birmingham School Entry Arguments
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MONTGOMERY, Ala.
4 three-judge federal court
in Birmingham has heard
opposing contentions in the first
court test of any Alabama public
school segregation law since the
1954 Supreme Court decision.
Presiding Judge Richard T.
Rives of the U. S. Fifth Circuit
Court promised a decision after
the panel had had time to consider
the case. Judge Rives indicated,
however, that the action—directed
specifically at Alabama’s 1955
Pupil Placement Act — perhaps
should have been initiated in a
state court. (See “Legal Action.”)
As the May 6 Democratic primary
neared, the leading gubernatorial can
didates stepped up their efforts to prove
themselves best qualified to resist in
tegration. All of the 14 candidates seek
ing the nomination, which is equivalent
to election in Alabama, are pledged to
maintain segregation. But so great have
they found voter interest in the issue,
most have continued to stress their
resistance plans.
However, at least two of the less
prominent candidates were reportedly
secretly hoping to get the “Negro bloc
vote.” (See “Political Action.”)
CURRENT STATUS: Only case
attacking school segregation, Shut-
tlesworth v. Banks, heard by three-
i judge court in Birmingham. Deci
sion awaited.
The first court attack on public school
I segregation in Alabama was heard in
early April by a three-judge federal
panel in Birmingham.
The judges promised careful consid
eration of the case. At issue is the con
stitutionality of Alabama’s 1955 Pupil
Placement Act which, while not men
tioning race, gives local boards of edu
cation broad powers in assigning pupils.
The action challenging the law was
brought in behalf of four Birmingham
Negro children who had applied last
fall for admission to two Birmingham
' white schools—Phillips High School and
Graymont elementary school.
RIVES’ COMMENT
, Presiding Judge Richard T. Rives,
judge of the Fifth U. S. Circuit Court,
commented during the hearing April 3:
“What is worrying me is whether this
< case is right for a three-judge panel to
rule on its constitutionality. I wonder
if you [his comments were addressed
to the Negro attorneys for the peti
tioners] shouldn’t get a construction of
this matter from the state courts before
coming here.”
The placement law specifically pro-
( vides that students dissatisfied with
school board assignments may appeal
to state courts. One of the attorneys for
the Negro children, Ernest Jackson,
commented that some sections of the
law were fair while others were not. To
this, Judge Rives replied that Alabama
law provides that if one section of a
state statute is declared unconstitu-
' honal the other sections are not neces
sarily invalidated also.
CITES N.C. LAW
i Reid Barnes, an attorney for the
Birmingham school board, said the law
applies to all pupils and not just Ne
groes. Another school board attorney,
Joseph Johnston, argued that the North
Carolina placement law, similar to Ala
bama’s, has been upheld by the Su
preme Court and several Negro chil
dren have entered previously white
schools in that state.
“That is perfectly possible under the
laws of Alabama as they now stand,”
Johnston said. He contended that the
appellants made a mistake in bringing
the case to federal court first. He said
the action was “premature.”
The four Negro children were among
13 who originally petitioned the Birm-
Righam school board last August to
Permit them to attend several white
schools, which they said were nearer
1 their homes than Negro schools they
had been attending.
Nine of the 13 later withdrew their
Panes. The school board proceeded to
give a battery of tests to the remaining
four—tests authorized under the place-
jPsnt act. In November, the school
hoard sent 5,000 questionnaires to par
ents of children in the schools which
would be affected asking what, in their
opinion, would be the result if the re
quested integration were carried out.
NO RESULTS GIVEN
The school has never announced the
results either of the tests or the poll of
parents. In mid-December, parents of
the Negro children filed suit in federal
court asking that the placement act be
declared unconstitutional. The peti
tioners also requested that desegrega
tion of Birmingham schools be directed
in a “class” ruling.
In federal court April 3, attorneys for
the Negro children insisted that it
would have been futile to have con
tinued pressing for action by the school
board. It was evident, said attorney
Jackson, that no decision would be
forthcoming.
The other Negro attorney, James
Washington Jr. of Washington, D.C.,
said the placement act was clearly de
signed to “defy” the U. S. Supreme
Court’s integration decision. Its pur
pose, he said, is to preserve segregation
in Alabama.
Washington went through the law,
section by section, and declared several
parts of it unconstitutional. It “puts the
freeze on students,” he said, preventing
their transfer from schools they are now
attending. “The background of the
whole legislation is founded in defi
ance,” he continued.
NO TIME LIMIT
One specific objection cited by Wash
ington was the law’s failure to spell out
any time limit on pending studies of
application for transfer.
“How long do they go on?” he asked.
“Forever? A month? A year?”
Negroes are “trapped” by the law, he
said, also calling the court’s attention
to the fact that Alabama has another
law providing for the closing of schools
if the local board believes “friction” will
occur. Although the Alabama legisla
Major Developments
Since 1954
1) Passage in 1955 of the Pupil
Assignment (or school placement)
Law conferring on local boards of
education broad powers for de
ciding who shall go to what
school.
2) The Autherine Lucy case—
the long legal fight, her victory
in winning a federal court order
opening the doors of the Univer
sity of Alabama to her, her ad
mission to the campus and the
February 1956 riots which drove
her from the campus.
3) Approval by the legislature
and Alabama voters (in 1956) of
the “freedom of choice” amend
ment which, with subsequent en
abling legislation, paved the way
for abolition of public schools if
necessary.
4) The Montgomery bus boycott
which generated many of the
feelings now dominating the ra
cial issue in Alabama.
5) The first court challenge (see
current report) of any of Ala
bama’s post-Brown school segre
gation laws.
ture had been “subtle,” he said, “this
is the Virginia case all over again.”
The Negro attorneys insisted that the
law is unconstitutional and that the
three-judge panel does have jurisdic
tion. However, should the judges decide
otherwise, they argued that the case
should be heard by one of the judges
on the plea that the law denies the
petitioners their rights.
SPEAKS FOR BOARD
Attorney Barnes for the school board
replied that the case should not be con
sidered a class action but should be
limited to the four children as indi
viduals. He also denied that the Birm
ingham Board of Education had ever
said it would enforce segregation or
that the placement act freezes children
in their present schools. Local boards
have “full authority” to transfer, he
said, and “wide discretionary powers.”
The Rev. F. L. Shuttlesworth, Birm
ingham Negro leader whose daughter is
one of the petitioners, said after the
hearing that if Negroes lose the case
“we’U keep trying and we’ll keep try
ing because we know we’re right.”
Shuttlesworth said the organization
which he heads, the Alabama Christian
Movement for Human Rights, is back
ing the effort to integrate Birmingham
schools.
The court’s decision was expected
during May. Sitting on the panel with
Judge Rives, whose home is in Mont
gomery, were U. S. District Judges
Seyboum H. Lynne and H. Hobart
Grooms, both of Birmingham.
HEARING ON NAACP SET
Atty. Gen. John Patterson, a guber
natorial candidate who has frequently
referred to his actions to preserve seg
regation in Alabama (see “Political
Activity”), launched a new assault on
Negro integration leaders in April.
Montgomery Circuit Judge Walter B.
Jones granted Patterson a June 18 hear
ing to determine whether, as Patterson
charges, a 1956 injunction forbidding
the NAACP to operate in Alabama has
been violated.
Judge Jones at first scheduled the
hearing for April 24, two weeks before
the May 6 primary. Later he changed
the date to June 18, after both the first
and second primaries, explaining that
he had re-examined the court docket
and found it crowded.
Judge Jones issued an injunction
against the Alabama NAACP June 1,
1956, prohibiting the organization from
operating in the state. He also fined the
NAACP $100,000 for contempt in re
fusing to produce membership lists and
other records as demanded by Patter
son in the case. An appeal from the
contempt ruling is now before the U. S.
Supreme Court. The injunction is still
in effect.
CALLED ‘ALTER EGO’
Patterson’s new action is aimed at a
group calling itself the Alabama State
Coordinating Association for Registra
tion and Voting which, he says, is the
“alter ego of the NAACP” and hence
in contempt of court.
Patterson’s petition names two of the
incorporators—W. C. Patton of Birm
ingham, past president of the Alabama
NAACP, and W. P. Mitchell of Tuske-
gee, also a former NAACP official and
secretary of the Tuskegee Civic Asso
ciation (which Patterson has accused
of promoting the boycott of white
merchants in Tuskegee).
Patterson contends ASCARV was in
corporated in Alabama shortly after
Patton and Mitchell attended an
NAACP regional meeting in Atlanta
and is an effort by NAACP “in its im
patience to further disturb the people
of Alabama.”
LINKS LEADERSHIP
The same people who controlled the
NAACP in Alabama in 1956 now con
trol ASCARV, Patterson charges. “The
policies of the association are those of
the NAACP. The stated purpose of the
association is to act for the NAACP
which is banned in Alabama.”
The attorney general’s petition con
tinues:
“The NAACP, by its direction and
control of the association, seeks to do
indirectly what it cannot do directly.
This we will not permit . .
Judge Jones himself is currently in
volved in a political campaign for re
nomination May 6 as circuit judge.
Speakers in his behalf have charged
that the NAACP is making “every con
certed effort” to defeat the veteran
Montgomery judge. The Negro organi
zation would rather prevent his reelec
tion, according to Montgomery attorney
John Harris, “than any other dozen pub
lic officials in the entire South.”
This is so, Harris said, because of
the $100,000 contempt fine, because of
the judge’s stand as an avowed segre
gationist and because of the column he
wrote for the Montgomery Advertiser,
“I Speak For The White Race,” which
was widely reprinted.
Jones’ opponent, Montgomery attor
ney Donald McKay, denies any Negro
support and has pledged that he would,
if elected, preserve segregation in all
aspects.
CURRENT STATUS: State pri
mary is May 6.
Alabama’s gubernatorial campaign
for the May 6 primary ended as it be
gan, with each of the acknowledged
leading contenders trying to convince
voters that he is best qualified to pre
serve segregation.
There were other issues—school fi
nances, reapportionment, old age pen
sions, industrial development, etc.—but
candidates seem to have detected a high
public interest in segregation. Among
the comments by some of the front
running candidates in late April were:
Circuit Judge George Wallace of Bar
bour County, who has previously
—Birmingham News Photo
These three judges comprise the federal court panel which now has under con
sideration the suit seeking admission of four Negro students to two white schools
in Birmingham. The three-judge court was convened because the suit attacks the
constitutionality of Alabama’s pupil assignment law. They are, from the left, Judge
Seyboum Lynne, Judge Richard T. Rives and Judge Hobart Grooms.
threatened to jail FBI agents investi
gating jury fists in his county and
federal Civil Rights Commission in
vestigators as well: “If the Brownell
brownshirts come down here with bay
onets on the ends of their rifles to en
force integration in our schools then
they’ll be pointing them at empty
buildings. As governor I will transfer
the students to another school and close
the building . .
FAULKNER STATEMENT
Jimmy Faulkner, Bay Minette news
paper publisher and insurance company
executive: “White girls and boys ain’t
going to school with colored boys and
girls when I am governor.”
Atty. Gen. Patterson, who has
launched a new attack on Negro inte
gration organizations in Alabama (see
“Legal Action”) continued to claim the
best combat record against the NAACP.
It seemed clear that neither of the
three, generally regarded as the lead
ing contenders at the end of April,
would get many Negro votes. Specula
tion as to who would receive the “Ne
gro bloc vote,” or a substantial part of
it, centered on two candidates among
the top eight—Agriculture Commis
sioner A. W. Todd and Rep. George
Hawkins.
LINKED WITH FOLSOM
Both were finked closely with Gov.
James E. Folsom—Hawkins as Folsom’s
floor leader in the House and Todd as
the governor’s choice for the agricul
ture job. Folsom received a heavy Ne
gro vote in the gubernatorial campaign
of 1954. Two years later, because of his
reputation for restrained comment on
the race issue, he was defeated in a bid
for national Democratic committeeman,
but again received a large Negro vote.
Hawkins and Todd, like Folsom, have
promised to maintain segregation. But
they have said it less often and with
less elaboration than the other leading
eight candidates. Since Negro voters
were obviously faced with the choice of
the “lesser of evils,” Todd and Hawkins
were mentioned as probable recipients
of most of the 35,000 to 55,000 Negro
votes in Alabama.
All candidates finally signed the con
troversial party loyalty oath which
stems from the States’ Rights Party
revolt of 1948 over the national party’s
stand on the race issue (Southern
School News, April 1958).
However, a number of candidates for
the state Democratic Executive Com
mittee are avowed opponents of the
oath and say they offer the voters a
full slate of candidates who will try to
abolish it if elected.
CURRENT STATUS: Public col
leges segregated. University of Ala
bama technically open to Negroes.
Two private colleges desegregated.
Alabama Polytechnic Institute (Au
burn) has been formally censured by
the American Association of Universi
ty Professors for a charged infringe
ment of academic freedom.
The Auburn case developed when
Bud R. Hutchinson, assistant professor
of economics, wrote a pro-integration
letter to The Plainsman, student news
paper, last May. In the controversy
which ensued, Hutchinson was dis
missed. (See SSN, June 1957.)
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COMMUNITY ACTION
The attempted bombing of a syna
gogue in Birmingham, where the state’s
first school integration test is before a
federal court (See “Legal Action”)
brought immediate reaction from the
public, clergy and politicians.
A 54-stick bomb was found in a win
dow of the Temple Beth El April 28.
The fuse had failed to bum all the way
to the dynamite cap. Police speculated
the explosion was planned to have oc
curred simultaneously with the bomb
ing of the Jacksonville, Fla., synagogue
and Negro school.
CURRENT STATUS OF PUBLIC
SCHOOLS: Segregation maintained
at all levels in public school system.
CURRENT STATUS OF LEGIS
LATION: 10 acts strengthening
school segregation and 10 resolu
tions adopted since 1954.
# # #
Missouri
(Continued From Page 5)
dividual differences. Since this is true,
the instruments mentioned here should
be used with caution when making vo
cational decisions involving Negroes and
in all probability the same statement
should be made of other tests as well.
More research and improved instru
ments are necessary if we expect to use
tests to the best advantage for guidance
and personnel selection in situations in
volving the American Negro.”
Robert C. Anderson of Atlanta, direc
tor of the Southern Regional Education
Board, addressed an ACPA session on
providing higher education facilities
through regional action.
Outlining some of the board’s func
tions, Anderson explained how south
ern states contract through the board
to send their young men and women to
other states for specialized training. He
said some 1,100 students now study in
the South under such contracts, and
that states of the region now appropri
ate about $1,250,000 annually for the
service.
CURRENT STATUS of segrega
tion-desegregation in Missouri:
SCHOOL DISTRICTS: 209 of 244
bi-racial districts desegregated.
COLLEGES: All of 15 private
colleges desegregated in practice or
principle. Most private colleges de
segregated. # # #