Newspaper Page Text
PAGE 2—DECEMBER I960—SOUTHERN SCHOOL NEWS
Some Plans Are Paced;
Others Complete, Rapid
(Continued From Page 1)
WYATT
peal. Decisions in equity cases com
monly turn on intricate factual
disputes; few such ; have arisen in
school cases. All of tfiese factors have
combined to keep obscured the prece
dents which lawyers esteem.
However, courts in several recent
cases have approved the Nashville plan.
The Knoxville, Tenn., school board
cleared a program
that is basically
grade-a-year. The
district courts
themselves sup
plied similar plans
for the Houston,
Tex., and New Or
leans, La., schools.
At the other ex
treme, the school
board of Delaware
was told by the
Court of Appeals
that it must submit a plan providing for
full integration of all grades in the fall
of 1961. The federal courts in Louisiana
issued similar sweeping instructions to
the school boards of East Baton Rouge
and St. Helena parishes after several
years of litigation. These were temp
ered, however, with a provision: “from
and after such time as may be neces
sary to make arrangements for admis
sion of children to such schools on a
racially non-discriminatory basis.”
Between these extreme cases is the
situation in Fairfax County, Va. A fed
eral court described this area as still
basically rural, with a school popula
tion approximately four per cent Ne
gro. The school board had attempted to
desegregate only the first two grades,
with the rest scheduled at the rate of a
grade a year. This was not allowed. In
making its decision the court consider
ed the small percentages of Negroes in
the county and the small number of
these who actually applied. Admission
of the applicants was directed.
Similarly, when the school board of
Davidson County, Tenn., sought a
p-ade-a-year plan, the court directed
initial desegregation in four grades to
equalize the program with Nashville’s.
Although Nashville is located in David
son County, the county area has a much
smaller proportion of Negroes.
COURTS SHOW IMPATIENCE
Some courts are beginning to show
impatience with the delay of desegre
gation. In a Chattanooga, Tenn., suit,
the school board was denied a lengthy
delay to prepare a plan. More than five
years have elapsed since the 1955 de
cision, the court noted in its opinion.
A similar attitude was adopted in the
Rutherford County, Tenn., school case
by the same court which decided the
Nashville case.
Other school programs have been ap
proved which accent factors other than
time. In Atlanta, Ga., the plan calls for
a general desegregation, but with
transfers of students from previously-
attended schools closely circumscribed.
At the suggestion of a federal iudge, a
plan for Dallas. Texas, calls for the so-
called salt-and-pepper operation —
schools for whites, schools for Negroes,
and bi-racial schools for those wanting
to attend them. Barring a change of
sentiment among the apoellate courts,
the latter plan seems likely to be over
turned.
AREAS OF DOUBT
If the courts are gradually reaching
agreement on the general nature of de
segregation plans, the same cannot be
said of four important areas which af
fect many other problems of segrega
tion.
Thev are:
• To what extent can the standards
of the various state pupil placement
acts be used to exclude Negroes from
previously white schools?
• How far may school boards go in
requiring Negroes to appeal adverse
assignments?
• What latitude will Negroes be al
lowed in extending desegregation law
suits to include teachers and supervis
ory personnel?
• May a state support segregated
private schools without participating in
their affairs enough to have operation
of such schools declared “state action”
and subject to the 14th Amendment?
PUPIL ASSIGNMENT ACTS
The pupil assignment acts are in ef
fect in several Southern states. From
the legislative history of these acts, it
appears that they were designed to re
quire separate consideration of each
Negro child’s application for transfer to
a white school. Rather intricate proce
dures are sometimes prescribed.
The Arkansas law, which is typical,
allows school boards to assign students
to specific schools on the basis of the
availability of facilities, the suitability
of various curricula for particular
pupils, the adequacy of each pupil’s
background, the psychological effect on
the school of each pupil’s admission,
the possibility of breaches of peace, and
similar factors. The Supreme Court held
an act quite similar to this “not un
constitutional on its face.” The differ
ence between “not unconstitutional”
and “constitutional” may be obscure to
a grammarian, but for the lawyer it can
have considerable significance. In this
case, it amounted to a warning that it
is possible for the act to be applied so
as to be unconstitutional.
The Arkansas law is now being
litigated in two situations—Little Rock
and Jefferson County. The school board
in Little Rock, acting under the act,
assigned several Negroes to previously
white schools and denied other applica
tions. The district court approved the
board’s action. In Jefferson County, the
Dollarway board offered to use the act
as the basis for a desegregation plan,
but the offer was qualified by a state
ment that race would continue to be a
factor in assignment. The U.S. Eighth
Circuit Court of Appeals rejected this
plan as inadequate, and directed the
board to draw up a more specific pro
gram.
VIRGINIA CASES
Probably the clearest judicial com
ments on the legal problems provoked
by pupil assignment situations come
from Virginia, and arise not under a
state act, but under similar standards
adopted by local school boards for the
assignment of pupils. In the Fairfax
and Arlington cases, the court ex
amined closely the intelligence tests,
entrance examinations, geographical re
strictions, and academic qualifications
required of Negroes seeking certain
school assignments. Where similar pro
cedures and qualifications for white
students were not required in exactly
the same situations, the Negroes were
ordered admitted.
It seems clear that the courts will in
sist on strict conformity to the letter of
the assignment acts. In the Chattanooga
case, the court refused to allow the
school board to plead that the Negro
applicants had not complied with Ten
nessee’s assignment statute. The board
itself, the court said, had not complied
with the act since it was still main
taining separate basic school districts
for whites and Negroes.
The problem of requiring a Negro to
complete the full appeal requirements
after being refused assignment to a
school of his choice also arises most
frequently under the pupil assignment
acts. The Alabama law, which is typical
in this respect, requires a written objec
tion by the parent, and a subsequent
review by the board. There may be a
hearing. An appeal may then be made
to circuit court where financial guar
antees are required. An adverse de
cision there mav be taken to the Ala
bama Supreme Court.
GENERAL ATTITUDE
The general attitude of the courts on
these requirements was settled in
North Carolina litigation. The Third
Circuit Court of Appeals summed up
the rule in a case involving the schools
at Old Fort: Appeals processed before
school boards, if fairly and speedily
handled, must be completed before re
sort to federal courts. The applicant
need not, however, process his appeal
through state courts.
Two recent cases seem to have clari
fied and altered this rule somewhat.
One involved the complaints of Negroes
in Yancey County, N. C., who were
obliged to go outside the county for
schooling. A federal judge hearing the
case noted that to have required the
plaintiffs to complete their administra
tive appeal “would have been a futile
and vain thing—the evidence indicat
ing many dilatory tactics and evasions
on the part of the defendant which
obviously denied plaintiffs . . . their
rights under the constitution.”
In another case, this one involving
the Hillsborough County, Fla., schools,
the Fifth Circuit Court of Appeals di
rected a trial court to hear a conten
tion bv Negroes that the use of the pu
pil assignment act in the county had
not brought an end to the policy of
segregation. Should this contention be
proved at the trial, the court held, the
Negroes would be entitled to general
relief from segregation practices. The
board had argued the Negroes had not
complied with requirements of appeal
in the assignment acts.
If this doctrine is sustained in further
litigation, the role of the pupil assign
ment statutes in limiting desegregation
will be sharply curtailed.
The “class action” device has been
widely used by Negroes in asserting
their rights under the 14th Amendment.
Generally, it allows certain representa
tive persons of a specified class or
group to sue and have the results affect
“all others similarly situated,” in the
traditional language of such complaints.
The method is widely used in stock
holder suits, Indian tribal disputes, and
labor union problems as well as in ra
cial litigation. If there was ever any
doubt as to its application to Negroes
within a specified school district, the
question was settled when the Supreme
Court accepted the original segregation
suits as class actions.
The new problem arises over the ef
forts of Negroes in student desegrega
tion lawsuits to include Negro school
teachers, janitors and other personnel.
Two such cases are currently in litiga
tion: Escambia County, Fla., and Da
vidson County, Tenn. Strictly speaking,
neither of these is a class action, since
the Negroes’ contention is only that the
school segregation cases entitled the
students to attend school in a desegre
gated school situation where all per
sonnel are hired and assigned on a
non-discriminatory basis. The court
dismissed this part of the suit in the
Escambia case, ruling that it was a
“novel” contention that students could
assert rights for teachers and others as
if in a class action. An appeal on this
or another case of its type can be ex
pected.
STATE GRANTS UNLITIGATED
The last big, unlitigated problem af
fecting the desegregation of schools
concerns state grants to individuals to
pursue their education in private
schools which are segregated.
The problem here originated with the
language of the 14th Amendment, under
which most of the school litigation has
been decided. It requires that “no state
shall make or enforce any law which
shall abridge the privileges or immuni
ties of citizens ... nor shall any state
deprive any person of life, liberty or
property, without due process of law.
. . .” In operating public schools, coun
ties and cities act as agencies of the
state, and their actions of course con
stitute “state action.”
FLEXIBLE CONCEPT
No purely private action by individ
uals is prohibited by the amendment;
k ut . ™ hands of the courts, “state
action” for purposes of the application
of the amendment has been a rather
flexible concept. For example: the
agreement by private parties to a deed
to prohibit the sale of real estate to Ne
groes does not violate the 14th Amend
ment, but the use of state courts to
enforce such an agreement is a viola
tion. On the other hand, a divided Su
preme Court held only ten years ago
that a private New York housing proj
ect which excluded Negroes was not
in violation of the amendment merely
because it was organized under a state
redevelopment law and the site had
been condemned by the city govern
ment. A state court in California, in a
recent unappealed decision, held that
FHA and state loan guaranties made
Drivate housing “state action” and for
bade racial discrimination in its sale.
The question on schools that must
ultimately be litigated is simply this:
Does the use of state funds for scholar
ships for students of private schools
constitute “state action” so as to be sub
ject to the 14th Amendment?
In reaching a decision on this issue,
the courts will almost certainly con
sider the extent of the control which
the state maintains over the private
schools. Any transfers of public school
property to private schools at less than
market value will be scrutinized.
Evidence will be heard as to discrim
ination and non-discrimination in dis-
oensing of funds. Teachers* participa
tion in state pensions will be challenged.
There may be inquiry into the intent
of the legislature in providing for the
scholarships.
INTERPOSITION DOCTRINE
The doctrine of interposition, present
ly embraced by opponents of integra
tion in Louisiana, has had a varied ca
reer in American history. Generally, its
advocates contend that the states, under
the constitution, have the power to
suspend the effects of federal action
within the state. This time, it is a de
cision of the U.S. Supreme Court. On
previous occasions such authority has
been urged against actions of Congress
and the president.
One reason the doctrine has persisted
lies with the judicial system itself,
which will deal only with the facts in a
given case.
The federal courts have, over the
years, rather consistently declared in
valid the premises which are needed to
give legitimate status to interposition.
They have ruled that legislatures may
not act to nullify rights secured under
WEST VIRGINIA <
State College President E
Lauds Racial Cooperation
CHARLESTON, W.Va.
T he president of West Virginia
State College, answering a crit
ical article published in a national
Negro magazine, said inter-racial
cooperation among students was
excellent. (See “In The Col
leges.”)
Equipment at the now defunct Storer
College, West Virginia’s most notable
desegregation victim, was auctioned to
Virginia Union University, which pre
sumably will receive the proceeds from
the auction under terms of a merger
not made public. (See “In the Col
leges.”)
Desegregation was not an issue of
the November state elections in which
Gov. Cecil H. Underwood (R) failed in
his bid to unseat U.S. Sen. Jennings
Randolph (D). W. W. Barron (D) de
feated Harold E. Neely (R) for gover
nor. (See “Political Activity.”)
Inter-racial cooperation among stu
dents at West Virginia State College
was termed excellent by the college’s
president, William J. L. Wallace, on
Nov. 5. Dr. Wallace made this state
ment following publication of a na
tional magazine article which said de
segregation there was only “a physical
—not a spiritual—reality.”
Dr. Wallace said the story in Jet
magazine dealt only with the “sensa
tional rather than the real aspects of
the situation.”
The Jet story was titled “West Vir
ginia State Integration—a Troubled
Situation After Six Years” and was
written by Alex Poinsett. Jet deals with
Negro affairs and is published in Chi
cago.
The magazine article was prompted
by an open letter in which Dr. Wallace
reminded students last month that de
segregation is a two-way street. He
called for the opening of all campus
activities to all students.
COUNCIL RELUCTANT
The magazine story said Negro stu
dents believe that white students re
ceive preferential treatment in classes
and said white and Negro students seg
regate themselves in classrooms and the
dining hall. It pointed out that frater
nities and the student council are re
luctant to accept white students.
After reading the story Dr. Wallace
said, “I don’t think it was a good job
at all. I think he might have found, if
he had investigated far enough, that
many of our departmental organiza
tions and athletics have participation
representative of all of our students.”
Dr. Wallace noted that most com
plaints were directed toward campus
social activities. “We have very fine
participation in the affairs that really
count,” he added.
Dr. Wallace said he had instructed
the student council to make itself rep
resentative of the entire student body
and had not “ordered” it to integrate
as had been reported by Jet.
West Virginia was an all-Negro in
stitution before the State Board of Ed
ucation, in the wake of the U.S. Su
preme Court decision, ordered all state-
owned colleges to desegregate in 1954.
Since then many white students have
federal court judgments (otherwise,
John Marshall said in his opinion in
this case “the constitution itself be
comes a solemn mockery”); they have
denied the Massachusetts Legislature
the right to challenge the constitution
ality of a grant-in-aid statute; they
have denied the governor of Texas the
right to use troops in that state’s oil
fields to offset the effect of a federal
injunction; specifically, they have di
rected integration in Virginia where
there is an existing resolution of inter
position.
Since one of the basic tenets of the
doctrine is that the courts have no au
thority to strike “interposition” down,
this has produced a philosophical im
passe. However, barring a near-revolu
tionary change in governmental proce
dures, or a constitutional amendment,
the effectiveness of the doctrine is ex
tremely doubtful.
These are the principal areas of legal
interest as of the end of 1960. It is
more than likely that the complexity
of the problem may create many prob
lems of quite an unexpected nature be
fore the racial situation in the schools
of this country is ultimately clarified
# # #
enrolled, most of them day studej-
The student body today is reported
70 per Cent white.
★ ★ ★
An auction sale Oct. 29 at Harp^I
Ferry cleared the last block to (I
merger of the now closed Storer Ccg
lege and Virginia Union University u
Richmond. A spokesman for St®
said several van loads of desks, otk
furniture and the like had been mov?,
to the VU campus. . ]
The auction disposed of the last
maining items of personal propert[ £
Presumably proceeds from the audit
will go to Virginia Union, althoujl
terms of the merger have not bet?
made public. By act of the last Cot]
gress, buildings and grounds at the j| j
stitution went to the federal goveijl
ment for an eastern Park Service trai *
ing center.
Storer officially went out of existent t<
in January of last year. But it actual v
closed in 1954 when West Virginia eiE
ucational institutions were desegregati d
and a $20,000 annual state subsidy ^ a
cut off.
The college was a Negro Baptist-n n
lated training school for missionarit 1
established in 1868. n
★ ★ ★ F
TWO CAMPAIGNS 1
Two fund campaigns to raise $ 1
million were authorized Nov. 17 by tl a
Board of Trustees of Morris Han’t 1
College, a private segregated institutii 1
at Charleston.
At their autumn meeting the trusta I
approved a capital funds campaign t s
raise $1.5 million to finance the co 1
lege’s five-year development plan. Tl
other campaign is for $5 million fi J
endowment funds.
The board also authorized a tuitic ‘
increase to begin next September. 1
Dean Harry Straley told the boa: ‘
that the current enrollment of 1,® i
students is two years ahead of the col
lege’s projected enrollment schedul
This, he said, was despite a more st '
lective admissions policy.
Dr. Straley said present plans ca !
for a maximum fulltime enrollment t !
1,300. He added that the college will!
even more selective in the future as
means of upgrading student quality.
Dr. Leonard Riggleman, elected i
the meeting to his 31st year as pres 1
dent, told the trustees that Morris Har
vey is financially strong and operate
within its current budget. Morris Ha:
vey is West Virginia’s second large
private institution of higher leamisS
Gov. Cecil H. Underwood, who -
the Republican party back to power -
West Virginia four years ago after-
years on the sidelines, could not ovff
come the popularity of his oppone'
and the 276,000 Democratic majority-
his senatorial bid. He ran on his guW
natorial record, and Randolph on -
congressional record.
The civil rights issue never ca®
into the campaign. Underwood, ho*
ever, has frequently spoken out on ®
subject of total desegregation, include
a time in Atlanta, Ga., three years
when the Southern Regional Educate
Board headquarters was dedica®
there. •
Twice he was chairman of SREB 1
was highly regarded in the Dernoct*
ic-dominated Southern Governors
ference. As governor he continue"
policy laid down by his predecessj
William C. Marland, that the West »
ginia schools should be desegreg 3 ®
with all deliberate speed.
The racial issue had no part in “
defeat. Economic conditions in ’
Virginia are bad now, particularly
the coal fields, and voters demonste 8
ed that they wanted a change.
Randolph first went to Congress
the 1932 Democratic landslide and .
a militant supporter of the R°° se ^ :
New Deal policies. He lost his
after 14 years and went with CaPJ^i
Airlines as a top executive until j[
death two years ago of U.S. Sen. N -
Neely.
MISCELLANEOUS
A member of the West Virginia
leyan faculty has been credited
being one “of the pioneers to J* .
credit belongs for progress toward
tegration.” t
Dr. James L. Hupp was cited W
“Southern Patriot,” a paper pub 1 .
monthly by the Southern Educ
Fund, Inc. &