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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.” # # #