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SOUTHERN SCHOOL NEWS—SEPTEMBER 1958—PAGE 7
Virginia
(Continued From Page 6)
tion was a factor leading to the organi
zation of the squad.
In Arlington, County Board Chair
man Ralph R. Kaul disclosed that
county has arranged with the city of
Alexandria and the county of Fairfax
for any additional police aid needed
this fall.
Kaul declined an offer by segrega
tionist leader Jack Rathbone of the
services of what Rathbone described as
a “six-hundred-man rifle and pistol
team” to help keep order when schools
open. Rathbone is executive secretary
of the Arlington Defenders of State
Sovereignty and Individual Liberties.
DRY RUNS’ REPORTED
“I doubt that there are 600 Defenders
in Arlington,” Kaul said. “I doubt that
Mr. Rathbone has a 600-man rifle team
any more than he has an armored di
vision.”
On Aug. 27 personnel and equipment
from Arlington’s public service division
held a “dry run” of procedures to be
used in case of violence at schools. Ra
dio-equipped vehicles, which would be
used to transport police, rushed to vari
ous schools in answer to simulated
emergency calls.
Segregationists in Arlington, Char
lottesville and Norfolk have been work
ing on plans for operation of private
segregated schools in the event public
schools are closed by integration.
The Tenth District Educational Cor
poration failed to get a certificate of
occupancy to operate a “model” segre
gated school in a two-story dwelling.
County officials ruled that the building
failed to meet numerous health and
safety regulations required for a facility
of that type.
Jack Rathbone, executive secretary of
the corporation, said his group was go
ing ahead with plans for operation of
private schools but would use only one-
story buildings.
CHARLOTTESVILLE PLANS
Similar plans were being made by the
Charlottesville Educational Foundation,
headed by W. M. Pope, and the Tide
water Education Foundation in Norfolk,
of which attorney James G. Martin IV
is president.
Under Virginia law, if public schools
are closed or integrated, state funds will
be available as tuition grants for chil
dren who wish to attend private, non
sectarian segregated schools.
A Negro minister, Dr. Roland Smith,
pastor of First Baptist Church of Little
Rock, Ark., told members of First
Baptist Church of Newport News that
Virginia’s policy of massive resistance
ultimately will lead to a “Little Rock”
in this state.
Even though a few schools may close
or fail to open because of desegregation
orders, the vast majority of Virginia’s
estimated 827,500 school children will
attend segregated classes during the
1958-59 year. About one-fourth of these
students are Negroes.
The public school system in Virginia
is a joint local-state operation, and sta
tistical information will not be avail
able until first reports are received by
the state Department of Education from
the local superintendents in October.
It is certain, however, that a record
amount will be spent for public educa
tion. The 1958 General Assembly ap
propriated $176,500,000 for the schools
for the next two-year period, an in
crease of $38 million over the previous
two years, the largest increase in the
state’s history.
Sen. Harry F. Byrd (D., Va.) said on
A- U g. 30 Virginia would fight “with
every lawful means at our command”
to thwart what he called the Supreme
Lourt’s “illegal decision” on desegrega
tion.
Byrd, author of Virginia’s “massiv
resistance,” told a gathering at the an
nual picnic on his Berryville farm h
stands “firmly and four -square” wit
Guv. Almond in the latter’s avowe
determination to enforce the state
school-closing law in the face of fed
er ^By-° r dered desegregation.
I hope we shall avoid occasion fc
violence or rioting,” Byrd said. “An
disorder will weaken our righteor
cause.”
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'lliliurrifinCf a
haie
1965 Set For Integration Start
Following is a portion of the opinion issued Aug. 4 by U.S.
District Judge Sterling Hutcheson in the case of Allen v.
Prince Edward County School Board:
... In approaching the problem it is well to bear in mind
that this is not a lawsuit nor is it a cause in equity in the con
ventional sense. In the first, the court lays down legal princi
ples to guide the parties. In a proceeding in equity the chan
cellor formulates the rules to be applied. In this case the dis
trict judge must be guided by the broad, flexible principles
of equity while acting as arbiter of policies to be formulated
and carried out by the local school authorities.
As pointed out by the court of appeals, compliance with the
order may be brought about in ways other than by mixing
schools. However, this is a matter for determination by the
local authorities subject to approval or disapproval of the court
As set out in my opinion filed January 1957, the Supreme
Court did not lay down rules to be followed by the district
courts in solving the problem, but left a wide latitude for the
exercise of discretion. An examination of the opinion of the
court of appeals decided Nov. 11, 1957, supra, reversing my
decision, reveals that that tribunal has been equally absten
tious in charting a course. . . . The only light thrown upon
the subject by the court of appeals is found in the following
language:
and we think that the district judge was in error in not fix
ing a time limit for compliance with the order heretofore
entered in the cause.
As authority for this conclusion the court quoted from an
opinion by the chief judge of the Fifth Circuit in Jackson v.
Rawdon, to the effect that the plaintiffs there were entitled to
have the defendants “. . . acting promptly, and completely
uninfluenced by private and public opinion as to the desira
bility of desegregation in the community, proceed with delib
erate speed consistent with administration . . .”
We turn to that opinion to ascertain what right the plaintiffs
there were seeking to establish and find that it does not in
volve fixing a time limit to
comply with an order. The
plaintiffs there were seek
ing merely a declaration of
their rights by the court....
In my initial study of the
Brown cases, I considered
Jackson v. Rawdon, and
was influenced, in part, by
that opinion in reaching
my conclusion stated in
January 1957, supra. Final
ly, the opinion of the
Fourth Circuit concludes
with directions that this
court enter an order di
recting the defendants to
“make a prompt and rea
sonable start toward com
plying with the court’s or
der enjoining discrimina
tion on the ground of race
or color in admitting children to the schools under their super
vision.”
So, as is seen, the court of appeals has said in broad and gen
eral terms that I was in error in not fixing a time limit for
compliance, that I should say plainly the defendants must com
ply without further delay and a prompt and reasonable start
must be made. It is to be observed that the court refrained
from indicating what would be a proper time to fix, what act
of compliance must be without further delay, and they have
failed to define a prompt and reasonable start. It is clear that
the court recognizes what the Supreme Court announced,
namely, that the responsibility is upon the district court to pass
upon the details . . .
. . . The court of appeals says correctly that the enforcement
of a right may not be denied because of action taken or threat
ened in defiance of such right. But the Supreme Court has
announced in an epochal opinion that the exercise of a right
guaranteed by the Constitution of the United States may be de
ferred until necessary local adjustments in the public interest
may be effected . . . Judging from the experience of other
localities it may be observed that violence may be within the
realm of probability if precipitate action is taken. While this
consideration of itself is secondary the psychological effect
of such conditions upon immature children is of primary im
portance. It must be ever borne in mind that the children are
those for whom the entire educational system was devised and
their interests are not to be lost sight of in the conflicts of the
adult world in which they live.
So far as I have been able to ascertain, the nearest analogy
afforded by decided cases is that of Rippy v. Borders, . . . de
cided December 1957 by the Fifth Circuit. ... It is quite true
that the facts in that case may be distinguished from those in
the instant case, but the court of appeals there made it clear
that “the authority to administer the public schools is vested in
the appellants, the board and the superintendent, and, of
course, they are the ones required to make the necessary ar
rangements referred to in the judgment to be entered by the
district court as directed by our mandate”. After stating that
should the local authorities fail to meet their primary respon
sibility, then the duty will devolve upon the district court to
hold a hearing and proceed so as to require compliance, the
court used the following language:
“In the performance of their duty, the district court must exer
cise its own judgment and discretion in accordance with the ap
plicable principles of law set forth in Brown v. Board of Educa~
tion of Topeka, supra.” (Emphasis by the court).
In the argument before me it was urged that since the local
authorities have not adopted a plan, an order directing im
mediate compliance should be entered upon the theory that
the court under those conditions would not be responsible for
the consequence which might result. I am unable to agree that
this would be a proper discharge of the responsibility placed
upon the Court. In his dissenting opinion in the case of Sharp
v. Lucky, Circut Judge Ben F. Cameron, of the Fifth Circuit,
aptly stated the responsibility resting upon the district judges.
In referring to the period in the life of the nation which has
become well known as “The Tragic Era” from the title given
his book by Claude G. Bowers, Judge Cameron said:
“This sad epoch in our history was fomented in no small part,
by well-intentioned men in too much of a hurry. The basic lesson
wise men have learned from its excesses and its tragedies is
that civil rights can be insured and protected only by local
government administered by men with a sympathetic under
standing of the many facets of the problems involved; men who
approach their task in a spirit of friendship and local obligation.
Government can succeed only when its mandates deserve and
command the respect and the consent of the governed.
* * * *
“If we, in whose hands responsibility for leadership and judg
ment is placed, open our eyes to the teachings of history and
perform our duties with patience, with sympathy and with
common sense, we shall make a contribution toward averting a
repetition of an epoch from which nobody derived any benefit
and in which everybody suffered.”
. . . We hear such terms as “the jet age”, “a new day” and
“crash programs” used as excuses for speedy action. These
catch phrases are not consistent with the “deliberate speed”,
the “unhurrying chase” ascribed by Thompson to his “Hound
of Heaven.” Furthermore, they are not applicable to the situa
tion with which we are dealing. Despite the great advances
made in scientific and technical knowledge we have no evi
dence upon which to base a belief that in accepting new theo
ries of social or moral reform the modem human mind is any
more adaptable than that of the Athenian of 500 B.C. The
knowledge of preceding generations can be preserved in writ
ings but wisdom can not be transmitted by inheritance. It
must be acquired by experience.
In dealing with problems accompanying such reforms we
must look to the teachings of history if we are to avoid treach
erous shoals. History affords many lessons we would do well
to heed.
We find that following the adoption of his code of laws, Solon,
in order to afford a period for its acceptance by the people
and to avoid importunities for interpretation, modification,
etc., absented himself for 10 years during which he visited for
eign countries. Upon his return there yet remained much to
be done.
Later we find the admonition of The Great Teacher that
morality cannot be enforced by Pharisaic legalism. He pointed
to the truth that the application of external force will not
“cleanse . . . that which is within the cup and platter”, the
essential first step in reform . . .
It has been demonstrated that the hearts and the minds of
men can not be controlled by legislation nor by force. It has
been demonstrated that violence can be quelled by force, such
as the use of troops, but unless proper preliminary prepara
tion has been had, when the force is removed festering scars
remain requiring treatment of the type administered by Judge
Harry J. Lemley of the Eastern District of Arkansas in his
recent opinion in Aaron v. Cooper, . . . known as the Little
Rock Case . . .
It is belaboring the point to again call attention to the ob
vious fact that the Supreme Court recognized all this as dis
closed by its language in the Brown cases. A reading of those
opinions clearly reveals that the court should not confuse de
lay with defiance of or non-compliance with the law. The law
must be observed and the questions here to be determined
relate only to the method and time of such observance. Over-
hasty action necessitating a backward step is less conducive
to proper law enforcement than action taken after carefully
considered delay . . .
The defendants should proceed promptly with the formula
tion of a plan which will comply with the order heretofore
entered enjoining them from discriminating against the plain
tiffs in admission to the schools in the county solely on account
of race. They have indicated their purpose to so proceed.
The proposal of the defendants that a comprehensive survey
of the entire problem be made by experts trained in the sub
jects involved is, so far as I am informed, an approach which
has not been tried elsewhere. Considering the weight and im
portance which have been given psychological and sociologi
cal factors, such an approach would appear to have merit and
to contain the possibility of a worthwhile recommendation
dealing with the problems peculiar to the particular commu
nity with which we are concerned.
In determining what would be a proper time to fix for com
pliance, a number of factors and some precedents have been
considered. Obviously, it is not in the best interest of those
concerned to comply with the suggestion of the plaintiffs that
compliance be had with the beginning of the school year in
September 1958. Such a course would be unrealistic. It is
equally obvious that at this time there is no evidence before
the court upon which to base an opinion as to what would be
a proper time. It is anticipated that progress reports to be made
by the defendants in the future will throw light upon this
phase of the problem. Turning again to precedent available in
somewhat comparable situations, it is recalled that Solon con
sidered 10 years an appropriate interval to allow for adjust
ments to far-reaching changes in the customs of a people. The
period of greatest turmoil following the death of President
Lincoln, is regarded as about 12 years. The efforts to enforce
the 18th Amendment were concentrated over a period of some
12 or 14 years. Concededly, these yardsticks are of limited
aid, but they do reflect some past experiences with human
behavior. No better measure has been suggested nor has one
occurred to me. As I have pointed out previously, it is not
possible for a court to forecast conditions which will exist in
the future. It can only find facts which exist at a stated time,
past or present. In full realization of this limitation but faced
with directions from the court of appeals to fix a date and be
lieving that some assurance of stability of conditions in the
immediate future may be beneficial to the people of the county,
in their efforts to meet the changed conditions, I fix 10 years
following the 1955 decision in the Brown cases as the time for
such compliance. However, because of the uncertainty of con
ditions during the interval and the absence at this time of a
sound basis for this conclusion, the power to change this date
by either reducing or extending the time will be expressly
reserved and action under such reservation will be in accord
with what may develop in the future.
An order will be entered directing an immediate start in the
necessary preliminary steps looking to the formulation of a
plan, with directions that on or before Jan. 1, 1959, the de
fendants inform the court concerning progress to that date.
The report should reflect the qualifications of such consultant
or consultants as have then been engaged. The order will di
rect compliance with the terms of the injunction heretofore
entered at the beginning of the school year for 1965, unless
such order should be modified during the interval. The order
will expressly reserve to the court the power to modify it by
accelerating or extending the date of compliance and in such
other respects as the best interest of the parties and of the
public may appear proper including the power to direct addi
tional reports from time to time as may be deemed appro
priate.
Hutcheson
DELAWARE
State Asks
High Court
Decision
DOVER, Del.
D elaware, locked in a legal
controversy over administra
tive responsibility for statewide
desegregation, opened its fall
term with 19 of its 98 public
school districts desegregated—the
same number as last year.
State officials estimated a total en
rollment of 73,000. (See “School Boards
and Schoolmen.”)
The state has appealed to the U.S.
Supreme Court to relieve its board of
education of responsibility for drafting
a general desegregation plan for the
state (See “Legal Action.”)
Dr. George Miller, state Superintend
ent of Public Instruction, said he an
ticipated a September enrollment of
73,000, of which 14,000 are Negroes. In
June, the figures stood at 69,202, in
cluding 12,360 Negroes. Delaware has
39 white districts and 40 Negro districts
and 19 desegregated districts. All but
one of the desegregated districts—Dov
er—are in Newcastle County. Dover
high school has 632 pupils, of whom
12 are Negroes.
Officials of the state Department of
Public Instruction said they did not
look for any expansion of desegregation
except in the small city of Newcastle in
northern Delaware where a three-year-
old desegregation plan is being ex
panded to take in all grades.
At the end of September, 1957 there
were 4,497 Negroes in integrated schools
although five of the 18 desegregated dis
tricts, while willing to accept Negroes,
had none to apply.
The state’s appeal to the Supreme
Court over which state governmental
agency is to draft a general desegrega
tion plan for the state is the latest move
in a long drawn out legal hassle.
The issue does not involve compli
ance with the Supreme Court desegre
gation order but deals rather with ad
ministrative responsibility.
The state’s appeal has been set for
hearing at the Supreme Court’s Oc
tober term.
The appeal grew out of a decision by
the Third Circuit Court sitting in Phila
delphia, in the cases of Buchanan et al
v. Evans.
The circuit court ruled the state
Board of Education should draft a gen
eral plan of desegregation for the seg
regated districts of Delaware and sub
mit them to the districts.
The board, however, has taken the
position it is the responsibility of the
local districts to initiate such plans and
submit them to the board for approval.
DESEGREGATION NOT QUESTION
State Atty. Gen. Donald Craven in his
brief to the Supreme Court said:
“It cannot be emphasized too strong
ly that the present question is not one
of desegregation. The state board has
never raised the question and does not
do so now.
“The sole question is one of imple
mentation of desegregation ... It is
submitted that this question is of great
significance at the present level and
will be increasingly so within the com
ing years.”
The Democratic and Republican par
ties of Delaware have adopted pro-
civil rights planks as part of their re
spective 1958 state platforms.
The political platforms were adopted
at August conventions amid practical
ly no dissension or even discussion on
the part of party delegates who come
from the areas in Delaware that are
zealous for segregation.
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