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PAGE 8—MAY I960—SOUTHERN SCHOOL NEWS
Extracts From Dollarway Decision
V.S. District Judge J. Smith Henley issued a decision Feb.
19 on Dove v. Parham in which he ordered the Dollarway
school board to eliminate compulsory segregation and to
present an affirmative plan. Part of the opinion follows:
“The plaintffs, Negro children of school age residing within
Dollarway School District No. 2, Jefferson County, Ark.,
commenced this suit originally as a class action to put an end
to racial segregation in the public schools of the district, and
to obtain an adjudication that the Arkansas pupil placement
laws of 1956 and 1959 are unconstitutional as violative of the
14th Amendment to the Constitution of the United States as
construed by the Supreme Court of the United States in the
Brown case . . .
“It is undisputed that the plaintiffs followed all of the ad
ministrative procedures before the School Board prescribed
by Sections 7 and 9 of Act 461 of 1959. On the other hand, it
is admitted that the plaintiffs did not pursue the remedy in
the State court provided by Section 9 of the Act . . .
“In the light of the decision of the Court of Appeals in
this case, it is clear that the plaintiffs were required to ex
haust their administrative remedies before the School Board,
and this they have done. Whether they were required to
carry their contention into the State courts, as contemplat
ed by the statute, presents another question. The Court is
persuaded that the plaintiffs were not so required.
JUDICIAL REMEDIES
“Ordinarily, a party who claims that his federal constitu
tional rights have been abridged by State administrative
action, although required to exhaust his State administrative
remedies, is not required to exhaust judicial remedies in the
State courts before resorting to the federal courts for the
vindication of his rights . . .
“There can now be no question that under the Brown deci
sions compulsory segregation of the races in the public
school is unconstitutional . . .
But, Brown, while outlawing compulsory public school
segregation, does not require affirmative race mixing in the
schools . . .
“The responsibility for devising acceptable plans is upon
the local school boards rather than upon the federal courts,
and the local boards, so long as they act in good faith, have
considerable latitude in choosing the policies they desire to
pursue . . .
. . And, when individual assignments are considered
under such a plan, it seems to the Court that the race of a
student who may desire to be assigned to a particular school
may be considered to a limited extent as one of a number
of factors going into the total equation . . .
“While the Court of Appeals has held in this case that
Act 461 of 1959 is constitutional on its face, that Court has
made it clear that the statute cannot be used validly to per
petuate segregation or to circumvent the Brown decision....
FUTURE APPLICATION
“If the Court were convinced that the future application of
the statute and regulations would be permanently character
ized by initial assignments made on the basis of race, and
that the assignment standards would be applied only to stu
dents seeking to attend schools formerly attended exclusively
by students of another race, it would have little hesitation
in saying that such an application would be invalid . . .
“However, future application of the pupil assignment law
will not necessarily be so characterized. Under the statute
and regulations it is open to the Board to give to each stu
dent a free and reasonable opportunity to express his pref
erence as to the school which he is to attend the following
year, and it is open to the Board to consider the case of
each student on an individual basis in the light of the valid
criteria contained in the statute and regulations, and to make
individual assignments based on valid and constitutional
bases, free from any consideration of race . . .
“In the circumstances here present the Court is not will
ing to say at this time that the Board’s future application of
the statute will be unconstitutional. However, the Board will
be required to submit to the Court within 30 days an affir
mative statement of the policies that it intends to pursue in
the application of the Act so as to end compulsory segrega
tion in the public schools.
“From a consideration of the record before the Board and
of the testimony in this case it is clear that in refusing the
requests for transfers the Board took into consideration cri
teria which are unquestionably valid in and of themselves,
and had those been the only standards employed, this Court
would probably not feel justified in holding that any racial
discrimination had been practiced against any of the plain
tiffs. It is equally clear, however, that the Board considered
the race of each of the applicants and gave that factor some
weight in reaching its conclusions. The Court is not able to
say trom the record how much weight was given to the race
of the respective applicants, and what the Board’s conclu
sion in any instance would have been had race been left
entirely out of consideration . . .
“As pointed out, however, at the time the Board made its
determination it had not given expression to any affirmative
plan and had not established any transition period. Such
being the case, the Court is forced to the conclusion that
the Board had no right to consider the race of these stu
dents in passing upon their applications, and that its action
in so doing cannot be sustained.
GIVEN OPPORTUNITY
“On the other hand, the Court does not feel that any good
purpose would be served by remanding the case to the Board
for further consideration of the individual assignments with
out regard to race, nor is the Court of the opinion that the
Board should be ordered to admit the students to the Dollar
way School for the remainder of this term. Apart from the
time element, the Court feels that the Board should be given
a reasonable opportunity to work out an acceptable plan for
the elimination of racial discrimination without being com
pelled to accept in advance Negro students at the higher
grade levels in contravention of the Board’s announced gen
eral policy against lateral transfers at those levels . . .
“There is one other matter to which reference should be
made. The evidence reflected that the hearing before the
Board was marred by a disturbance created outside the
school by a crowd of white people whose presence there may
well have been in part coincidental as a football game was
being played nearby on the same night the hearing was
held . . .
“While it should be said that there is nothing to indicate
that the Board had anything to do with this disturbance, or
sympathized with it, or was influenced by it, and while the
president of the Board talked to the people and urged them
to disperse, this Court wishes to emphasize that such dis
turbances Eire not to be condoned, and that the Board’s ef
forts to eliminate racial discrimination in the public schools
must not be permitted to yield to lawlessness, whether in
side or outside the schools, and whether organized or spon
taneous. The Court feels that the Board fully recognizes this
principle, and it is the hope of the Court that the general
public will also recognize it.
“In accordance with the mandate of the Court of Appeals
an injunction will be issued commanding the Board to
eliminate the compulsory racial segregation which has here
tofore prevailed in the Dollarway District. The order will
also provide for the submission of an affirmative plan by the
Board, and jurisdiction of the cause will be retained for the
purpose of passing upon such plan as may be submitted
and for the entry of such other and further orders as may
be necessary in connection with such plan ...” # # #
Arkansas
(Continued From Page 7)
Bruce Bennett before the ticket closed
April 27.
They were:
H. E. Williams, 50, of Walnut Ridge,
ordained Baptist minister and the
founder and president of Southern
Baptist College at Walnut Ridge. This
is his first venture into politics.
Joe C. Hardin, 61, of Grady, well-to-
do planter and businessman from east
Arkansas. He was a state representa
tive in the 1930s and is a former state
commissioner of revenues. He put in
seven years as president of the Arkan
sas Farm Bureau Federation and is a
former director of three big public
utilities.
Hal Millsap, 38, of Siloam Springs,
a grocer and oil dealer, previously un
known in politics. He said he wanted
to do something about changing the
reputation the state had gained in the
last two or three years.
FAUBUS REACTS
Of his four opponents, Faubus re
acted visibly only to Hardin. At his
first press conference after the news
papers reported that Hardin might run,
Faubus let loose with a blast.
A group of “hard core integration-
ists” in Arkansas and Little Rock,
with connections in Washington, are
out to beat him, he said. They selected
Hardin as their best candidate and
Bennett and Williams are just their
puppets, to be abandoned now that
Hardin is running, he added. Faubus
was irate but controlled and intense.
Some members of the same group,
he said, are encouraging Associate Jus
tice Jim Johnson, one of the state’s
most vocal segregationist leaders, to
run against U.S. Sen. John L. McClellan
(D-Ark). Astonished reporters asked
for a repeat of that.
“Yes,” said the governor, “the situa
tion has created some of the damnedest
alliances I’ve ever seen.”
CALLED CHARGE
Hardin called this charge “he No.
1” by Faubus, while Bennett and Wil
liams just swept the charges aside.
Johnson, who has had some sharp
exchanges with Sen. McClellan, admit
ted that he was thinking about run
ning against him but didn’t.
Hardin said he decided to run be
cause it had reached the point that
people were afraid to speak out against
the fourth-term candidate.
FAUBUS-BARNETT
Kent Courtney of New Orleans, or
ganizer of the Independent American
Federation of State Parties, said that
Gov. Faubus of Arkansas and Gov. Ross
Barnett of Mississippi would make a
good presidential ticket, with either
one of them heading it. He said his
movement would have a national con
ference May 6-7 at Jackson, Miss. Then
it developed that Gov. Barnett didn’t
want it there.
(Convictions Set Slsicle
Courtney switched the meeting to
Little Rock, then couldn’t get hotel
reservations for that date. He switched
it again to Shreveport, La., and changed
the dates to June 3-4. He said the “na
tional political powers” were throwing
barriers in his path.
One of the scheduled speakers is As
sociate Justice Johnson and Courtney
also hopes to get Faubus. Faubus is
already the presidential candidate of
one third party movement, the National
States Rights Party, with Ret Adm.
John G. Crommelin of Alabama as the
vice presidential candidate.
MISCELLANEOUS
Negro sit-down demonstrations at
white lunch counters in downtown
stores continued during April at Little
Rock, with eight more Negroes being
arrested and fined. At both Little Rock
and Fine Bluff, the National Assn, for
the Advancement of Colored People
called for boycotts of certain stores be
cause of their segregated eating facili
ties.
At Little Rock, the NAACP an
nounced its boycott April 1 against
eight downtown stores. In support of
the boycott, the Negroes picketed some
of these stores, led by Mrs. L. C. Bates
of Little Rock, state NAACP president.
ANOTHER BOYCOTT
The same stores, lumped together
with others as “Main Street mechants,”
also are being boycotted by the Capital
Citizens Council, white segregationist
group. The Citizens Council started its
boycott last August when the revamped
Little Rock school board reopened the
high schools and admitted eight Negro
students over the protests of segrega
tionists and Gov. Faubus.
Amis Guthridge, counsel to the Citi
zens Council, said in April that many
people were withholding their patron
age from the Main Street stores but
that the general public hadn’t joined
in.
EIGHT ARRESTED
In addition to the five Negro “sit-
downers” arrested and fined in March,
eight more were arrested April 13. All
eight were fined $250 each and sen
tenced to 60 days in jail. Two also were
fined an extra $150 and 30 days in jail.
So far, all the “sit-downers” have been
identified as students at Philander
Smith College, a Methodist school for
Negroes at Little Rock.
At Pine Bluff, 45 miles southeast of
Little Rock, the NAACP is boycotting
the Woolworth and Newberry chain
variety stores, which have lunch coun
ters open only to whites. The Kress
store, which has no lunch counter, was
not boycotted. Two weeks after the
start of the boycott, Dr. D. E. Parker,
dentist and president of the Pine Bluff
Branch of the NAACP, announced that
of 4,662 Negro customers who entered
the three stores on a Saturday, only
156 entered Woolworth and Newberry.
# # #
—
Text Of Supreme Court Decision In Case Involving NAACP Lists
The U.S. Supreme Court threw out the convic
tions of two Arkansas officers of the National
Assn, for the Advancement of Colored People
who refused to submit lists of members and
contributors under municipal ordinances. The
text of the Feb. 23 decision follows in part:
“Each of the petitioners has been convicted of
violating an identical ordinance of an Arkansas
municipality by refusing a demand to furnish
city officials with a list of the names of the mem
bers of a local branch of the National Assn, for
the Advancement of Colored People. The ques
tion for decision is whether these convictions can
stand under the Due Process Clause of the Four
teenth Amendment to the United States Consti
tution.
“Municipalities in Arkansas are authorized by
the State to levy a license tax on any person,
firm, individual, or corporation engaging in any
trade, business, profession, vocation, or calling
within their corporate limits. Pursuant to this
authority, the City of Little Rock and the City
of North Little Rock have for some years im
posed annual license taxes on a broad variety of
businesses, occupations, and professions. Chari
table organizations which engage in the activities
affected are relieved from paying the taxes.
“In 1957 the two cities added identical amend
ments to their occupation license tax ordinances.
These amendments require that any organization
operating within the municipality in question
must supply to the City Clerk, upon request and
within a specified time, (1) the official name of
the organization; (2) its headquarters or regular
meeting place; (3) the names of the officers,
agents, servants, employees, or representatives,
and their salaries; (4) the purpose of the or
ganization; (5) a statement as to dues, assess
ments, and contributions paid, by whom and
when paid, together with a statement reflecting
the disposition of the funds and the total net in
come; (6) an affidavit stating whether the or
ganization is subordinate to a parent organiza
tion, and if so, the latter’s name. The ordinances
expressly provide that all information furnished
shall be public and subject to the inspection of
any interested party at all reasonable business
hours.
CUSTODIANS OF RECORDS
“Petitioner Bates was the custodian of the rec
ords of the local branch of the National Assn, for
the Advancement of Colored People in Little
Rock, and petitioner Williams was the custodian
of the records of the North Little Rock branch.
These local organizations supplied the two munic
ipalities with all the information required by the
ordinances, except the names of the organizations’
members and contributors ....
“After refusing upon further demand to submit
the names of the members of their organizations,
each petitioner was tried, convicted, and fined for
a violation of the ordinance of her respective
municipality. At the Bates trial evidence was of
fered to show that many former members of the
local organization had declined to renew their
membership because of the existence of the or
dinance in question. Similar evidence was re
ceived in the Williams trial, as well as evidence
that those who had been publicly identified in the
community as members of the National Assn, for
the Advancement of Colored People had been
subjected to harassment and threats of bodily
harm.
“On appeal the cases were consolidated in the
Supreme Court of Arkansas, and, with two jus
tices dissenting, the convictions were upheld ....
“Like freedom of speech and a free press, the
right of peaceable assembly was considered by
the Framers of our Constitution to lie at the
foundation of a government based upon the con
sent of an informed citizenry—a government ded
icated to the establishment of justice and the
preservation of liberty . . . And it is now beyond
dispute that freedom of association for the pur
pose of advancing ideas and airing grievances is
protected by the Due Process Clause of the Four
teenth Amendment from invasion by the States...
SUBTLE INTERFERENCE
“Freedoms such as these are protected not only
against heavy-handed frontal attack, but also
from being stifled by more subtle governmental
interference. . . .
“On this record it sufficiently appears that com
pulsory disclosure of the membership lists of the
local branches of the National Assn, for the Ad
vancement of Colored People would work a sig
nificant interference with the freedom of associ
ation of their members. There was substantial
uncontroverted evidence that public identification
of persons in the community as members of the
organizations had been followed by harassment
and threats of bodily harm. There was also evi
dence that fear of community hostility and eco
nomic reprisals that would follow public dis
closure of the membership lists had discouraged
new members from joining the organizations and
induced former members to withdraw. This re
pressive effect, while in part the result of private
attitudes and pressures, was brought to bear only
after the exercise of governmental power had
threatened to force disclosure of the members’
names. . . .
“Decision in this case must finally turn, there
fore, on whether the cities as instrumentalities of
the States have demonstrated so cogent an inter
est in obtaining and making public the member
ship lists of these organizations as to justify the
substantial abridgment of associational freedom
which such disclosures will effect. Where there
is a significant encroachment upon personal lib
erty, the State may prevail only upon showing a
subordinating interest which is compelling. . . .
GOVERNMENTAL PURPOSE
“It cannot be questioned that the governmental
purpose upon which the municipalities rely is a
fundamental one. No power is more basic to the
ultimate purpose and function of government
than is the power to tax. . . .
“It was as an adjunct of their power to impose
occupation license taxes that the cities enacted
the legislation here in question. But govern
mental action does not automatically become rea
sonably related to the achievement of a legiti
mate and substantial governmental purpose by
mere assertion in the preamble of an ordinance.
When it is shown that state action threatens sig
nificantly to impinge upon constitutionally pro
tected freedom it becomes the duty of this Court
to determine whether the action bears a reason
able relationship to the achievement of the gov
ernmental purpose asserted as its justification.
In this record we can find no relevant cor
relation between the power of the municipalities
to impose occupation license taxes and the com
pulsory disclosure and publication of the mem
bership lists of the local branches of the National
Assn, for the Advancement of Colored Peo
ple. ...
COMPLETE FAILURE
“In sum, there is a complete failure in this rec
ord to show (1) that the organizations were en
gaged in any occupation for which a license
would be required, even if the occupation were
conducted for a profit; (2) that the cities have
ever asserted a claim against the organizations
for payment of an occupation license tax; (3)
that the organizations have ever asserted ex
emption from a tax imposed by the municipali
ties, either because of their alleged nonprofit
naracter or for any other reason.
“We conclude tnat the municipalities have
failed to demonstrate a controlling justification
for the deterrence of free association which com
pulsory disclosure of the membership lists would
cause. The petitioners cannot be punished for re
fusing to produce information which the munici
palities could not constitutionally require. The
judgments cannot stand.” # # #