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SOUTHERN SCHOOL NEWS—AUGUST, 1962—PAGE 5
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Prince Edward Text
(Continued From Page 3)
County that he would file such a suit
if the petitioners failed to do so, this
Court abstained from determining the
issue, pending a final ruling by the Su
preme Court of Appeals of Virginia.
But such was not to be—true the
petitioners filed a petition for writ of
mandamus in the Supreme Court of
Appeals (Leslie Francis Griffin, Jr. v.
Board of Supervisors of Prince Edward
County) to compel the Board of Su
pervisors of Prince Edward to appro
priate money for the maintenance and
operation of free public schools in the
county. However, they expressly in
formed that court in their printed brief
that “There are no Federal questions
(involved) in this proceeeding,” and
Chief Justice Eggleston, speaking for
the Supreme Court of Appeals, said
. . and we perceive none.”
The defendants now move this Court
to dismiss or, in the alternative, to
abstain from determining the issues
presented in the amended supplemental
bill of complaint upon the ground the
petitioners deliberately failed and re
fused to comply with the order of this
Court by deleting all federal questions
from the suit filed in the Supreme
Court of Appeals.
This motion would be meritorious
had the defendants filed an appropriate
answer and/or countersuit to the plain
tiffs’ petition for writ of mandamus so
that the citizens of Virginia would have
learned from their highest state court
whether the public schools of Prince
Edward County could be legally closed
in accordance with the State and Fed
eral Constitutions, under the circum
stances there existing.
Dismissal Denied
This “issue” must be determined—
and dismissal of the pending suit will
not accomplish that end. Therefore, the
motion of the defendants to dismiss the
amended supplemental complaint will
be denied.
The doctrine of abstention is well
embedded in the federal procedure, and
rightfully so. It is aimed at the avoid
ance of unnecessary interference by the
federal courts with properly adminis
tered state concern . . .
However, the District Court cannot
avoid its duty to adjudicate a contro
versy properly before it by postponing
the exercise of its jurisdiction by in
voking the doctrine of abstention . . .
And especially so when it is advised
by counsel for all parties that none of
them intends to file another suit in the
state courts.
The Prince Edward County public
schools have been closed for three years
and will remain closed unless they be
legally required to reopen. During the
interim practically all of the Negro
children in the county have been de
nied a formal education. The white
children are being educated in the
(private) Prince Edward Foundation
schools, or away from home, at the ex
pense of their parents and friends. All
other children in the State of Virginia,
both negro and white, are given the
privilege of being educated in public
Alabama
(Continued From Page 2)
the general public, plus the speaker,
lieutenant governor and governor. The
governor would have served as chair
man.
legislature authorized expenditure
of $25,000 to “develop and promulgate
^formation concerning the dual sys
tem of government.” The commission
would have addressed its efforts to the
relationship between state and federal
Sovernments with emphasis on the
Powers reserved to the states and the
individual liberties” of citizens, “to
gether with the effect of integration,
Particularly of integration of schools
^ i. ot ^ er Public institutions in areas
of heavy Negro population on educa
tion.”
Rep. Locke said the purpose of the
easure was to “support and defend
tfte segregated way of life.”
Governor’s Statement
In killing the proposal by pocket veto,
t-ov. Patterson said:
The responsibility for maintaining
segregation in the public schools rests
Primarily with the governor. The pro
posed commission would have the au-
ority to deal with other states and
even the federal government.
,. * cennot believe that the people of
abama would want such vital issues
of SC ", 0 °! se g re gation left in the hands
individuals whose personal whims
jj ,, a ttitudes are unknown to the pub-
legislature was in special session
en the bill was passed. The session
fed S Ca ^ ed ky Patterson to answer a
deral court warning to reapportion
lne legislature. # # #
schools at public expense.
This is a suit in equity instituted by
the infant plaintiffs requesting this
Court to declare and insure them, and
all others similarly situated, their con
stitutional rights. To further abstain is
to further delay—and further delay in
the formal education of 1,700 children
would create an irreparable loss. These
children are entitled to know whether
any of their federally protected rights
are being abridged. The motion to fur
ther abstain will be denied.
That the Board of Supervisors of
Prince Edward caused the closing of the
public schools in the county in order
to avoid the racial discrimination pro
hibited by the Supreme Court of the
United States cannot be seriously ques
tioned. This action was in accord with
the Board’s expressed policy (adopted
in May, 1956) to abandon public schools
and educate the children some other
way if that be necessary to preserve
segregation of the races in the schools
of Prince Edward County.
‘Beyond Judicial Review’
The defendants attempt to justify
their action and/or inaction upon the
theory that public schools of Prince
Edward County are owned, operated,
managed, and controlled by the local
school board—that they are not now
and never have been operated by the
state or any state agency—that the
Fourteenth Amendment is addressed
solely to the state—that the Board of
Supervisors cannot be compelled to levy
taxes or appropriate money for the
maintenance of free public schools—
and that the reason or motive back of
such action or inaction is beyond judi
cial review.
In determining whether these con
tentions are well-founded, it is neces
sary and proper to review and re
examine the Federal and State Consti
tutions, the implementing statutes, and
the recent court decisions pertaining to
public education. In so doing, we find
the Supreme Court of Appeals of Vir
ginia in the Griffin suit, supra, held
that Section 136 of the Constitution of
Virginia and Code Sections 22-126 and
22-127, as amended, which implement
the constitutional provision, vest in the
Board of Supervisors of Prince Edward
County the discretionary power and
authority to determine what additional
sums, if any, should be raised by local
taxation to supplement the funds pro
vided by the state for the support of
the schools in the county. That holding
was in accord with previous decisions
of that court.. . .
Local Or State?
There is not anything in the Griffin
decision indicating that the Board of
Supervisors has a duty to maintain or
operate public schools. To the contrary,
Chief Justice Eggleston, speaking for
the court, said:
“Whatever may be the duty imposed
under Section 129 of the Constitution,
that section is plainly directed to the
General Assembly and not to the local
governing bodies. It says, ‘The General
Assembly shall establish and maintain
an efficient system of public free schools
throughout the State’ . . .”
In Harrison v. Day, the Supreme
Court of Appeals held that Section 129
of the Virginia Constitution is still in
the organic law (of Virginia) and must
be complied with. The court further
stated in its opinion that Section 129
“. . . requires the State to ‘maintain an
efficient system of public free schools
throughout the State.’ (Emphasis in
cluded.) That means that the State
must support such public free schools
in the State as are necessary to an effi
cient system, including those in which
the pupils of both races are compelled
to be enrolled and taught together,
however unfortunate that situation may
be.”
The court further stated that the pro
visions of certain appropriations acts
(then under consideration by that
court) violated Section 129 of the Con
stitution in that they removed from the
public school system any schools in
which pupils of the two races are mixed
and made no provision for the support
and maintenance of said schools as a
part of the system.
Mandatory Duty
From this decision it would appear
that the Constitution of Virginia im
poses a mandatory duty to establish
and maintain an efficient system of
public schools throughout the state, and
that the state may not remove from
the system schools in which the races
are mixed.
Article IX of the Constitution of Vir
ginia, embracing the subjects of Edu
cation and Public Instruction, contem
plates that money for the establishment
and maintenance of public free schools
will be appropriated partly by the
General Assembly and partly by the
local governing units. (See Griffin v.
Board of Supervisors of Prince Edward
County, supra.) Other sections of that
article provide for the appointment and
duties of the Superintendent of Public
Instruction, the powers and duties of
the State Board of Education, and the
creation of school districts and school
trustees. Title 22 (Education) of the
Code of Virginia, implements these
constitutional provisions.
From a careful reading of the fore
going Virginia authorities, it would ap
pear the local school boards have been
given the responsibility by law of es
tablishing, maintaining, and operating
the school system along with the State
Board of Education, Superintendent of
Public Instruction and Division Super
intendent of Schools. The Supreme
Court of Appeals has so held.
Thus it is clear the public schools of
Prince Edward County are not under
the sole control of the county.
State Functions
This Court finds, and so holds, that
the public schools of Virginia were es
tablished, and are being maintained,
supported and administered in accord
ance with state law. These public
schools are primarily administered on
a state-wide basis. A large percentage
of the school operating funds is re
ceived from the state. The curriculums,
school text books, minimum teachers’
salaries, and many other school pro
cedures are governed by state law.
Nevertheless the public schools of
Prince Edward County have been
closed for the past three years. This
was accomplished by the refusal of the
Board of Supervisors to levy taxes or
appropriate money for the maintenance
of public schools, all of which was in
accord with the expressed policy of
the Board of Supervisors in their at
tempt to avoid the requirements of the
Brown decision. This action was taken
with the full knowledge and acquies-
cense of the State Board of Education,
the Superintendent of Public Instruc
tion, the School Board of Prince Ed
ward County, and the Division Super
intendent.
In these circumstances true focus is
not on the Board of Supervisors but on
the above-named school officials, all of
whom directly or indirectly are state
officials. They cannot abdicate their re
sponsibilities either by ignoring them
or by merely failing to discharge them,
whatever the motive may be. . . .
Counsel for the Board of Supervisors
has seriously contended, however, that
what the Board of Supervisors does, or
does not do, is not state action; that
the Board of Supervisors cannot be
compelled to levy taxes or appropriate
money for school purposes. The Su
preme Court of Appeals in the recent
Griffin case 90 held in re levying taxes
and appropriating money for school
purposes. That court did not, however,
pass upon or consider any federal ques
tions.
Supported Contention
Counsel for the Prince Edward
School Board and the Division Super
intendent wholeheartedly supported the
contention of the Board of Supervisors.
No argument was tendered justifying
the failure of those school officials in
fulfilling or attempting to fulfill the re
sponsibility imposed by law of estab
lishing, maintaining, and operating a
free public school system, except to
state that the County School Board will
establish and maintain public schools
in Prince Edward County if funds are
made available to it, all in strict ac
cordance with the April 22, 1960, order
of this Court.
The Attorney General of Virginia,
counsel for the State Board of Educa
tion and Superintendent of Public In
struction, likewise, in the main, sup
ported the position of the Board of
Supervisors. No argument was present
ed justifying the failure of those state
officials from attempting to fulfill the
responsibilities reposed in them by the
Constitution of Virginia of establishing
a system of free public schools
throughout the state . . .
The contention that the action and
inaction of the foregoing state and
county officials resulting in the closing
of the Prince Edward County schools
was a local action, beyond the purview
of the Fourteenth Amendment, is not
well taken. County has been defined
“as a body politic, or political subdivi
sion of the State, created by the legis
lature for administrative and other
public purposes.” It is generally re
garded as merely an agency or arm of
the state government.
The United States Constitution rec
ognizes no governing units except the
federal government and the states. A
contrary position would allow a state
to evade its constitutional responsibili
ties by carve-outs of small units. At
least in the area of constitutional rights,
specifically with respect to education,
a state can no more delegate to its
subdivisions the power to discriminate
than it can itself directly establish in
equalities. . . .
James v. Almond ... in discussing
the validity of the closing of some of
the City of Norfolk schools, also an-
WEST VIRGINIA
Complete Desegregation
Planned in Logan County
CHARLESTON
he Logan County Board of
Education has decided to
complete the racial desegregation
in the public schools of that coun
ty when the fall term begins in
September.
This will bring to 44 the number of
county school districts in West Vir
ginia that have been completely deseg
regated. There are 55 county districts in
the state and all with Negro enroll
ments have agreed to a desegregation
policy.
The Logan board decided on April
6, 1956 to desegregate the elementary
grades one through six on the opening
of the term that fall. Desegregation
above the sixth grade was delayed be
cause a school building program was
being carried out in the county. It was
decided, however, that any student
could enroll in the school of his choice
in his respective area providing there
was room for him.
Now that the county is about to com
plete its desegregation program the
county superintendent’s office has made
an analysis of the second month net
enrollment for the past 10 years, and it
shows there were 14 Negro schools in
the county in 1951-52.
Two were high schools—Aracoma and
Buffalo. Aracoma at Logan will be
closed this year, and Buffalo was closed
at the end of the 1958-59 school year.
Many Shifted
Asst. Supt. Ralph R. Willis said Ne
gro children were allowed to attend
whatever school they desired in Sep
tember, 1957, and many of them started
shifting that year.
When the enrollment at Buffalo
dropped from 199 in 1952-53 to 119 in
1958-59 the school was closed. The
slump came about when large numbers
of Negro children shifted to Man junior
nounces this same view. It said:
“While the State of Virginia, directly
or indirectly, maintains and operates
a school system with the use of public
funds, or participates by arrangement
or otherwise in the management of such
a school system, no one public school
or grade in Virginia may be closed to
avoid the effect of the law of the land
as interpreted by the Supreme Court,
while the state permits other public
schools or grades to remain open at the
expense of the taxpayers.”
The court further said:
“We do not suggest that, aside from
the Constitution of Virginia, the state
must maintain a public school system.
That is a matter for state determina
tion.”
This Court holds that the public
schools of Prince Edward County may
not be closed to avoid the effect of the
law of the land as interpreted by the
Supreme Court, while the Common
wealth of Virginia permits other public
schools to remain open at the expense
of the taxpayers.
In the event the public schools of
Prince Edward County are reopened
and maintained in accordance with the
order of this Court entered herein on
the 22nd day of April, 1960, it will not
be necessary to enter a more formal
order. If, however, the said schools are
not reopened prior to September 7,
1962, this Court will on that day con
sider any and all proposed orders ten
dered by counsel of record. . . .
Plans for Admissions
The School Board of Prince Edward
County is herewith directed to complete
plans for the admission of pupils in the
elementary and high schools of the
county without regard to race or color
and to receive and consider applications
to this end at the earliest practical
date. The proposed plans should be
submitted to all counsel of record not
later than September 1, 1962, if possi
ble, and to this Court on September 7,
1962.
The motion to substitute successor
defendants is herewith granted.
The motion to dismiss the motion for
further relief is herewith granted.
The motion to dismiss the injunction
entered herein on November 16, 1961,
and further extended March 26, 1962,
is denied. The said injunction is effec
tive only so long as the public schools
of Prince Edward County remain
closed.
Let copies of this memorandum be
mailed forthwith to all counsel of rec
ord.
Oren R. Lewis
United States District Judge
Alexandria, Virginia
July 25, 1962 # # #
West Va. Highlights
The Logan County Board of Edu
cation will completely desegregate
the county public schools with the
beginning of the fall term.
A hearing date for the reopened
desegregation case in Raleigh Coun
ty will be docketed when the sum
mer term opens at Beckley.
and senior high schools.
The same situation developed at Ara
coma and Logan high schools, with
Negro children preferring to attend the
previously all-white Logan High. Final
ly, when enrollment dropped from 445
in 1952-53 to 250 in 1960-61, the board
decided on its total desegregation
policy.
Willis said teachers from the closed
schools wiil be placed in other schools.
No Negro teacher, in other words, will
lose his or her job.
Monetary Savings
The board feels that there have been
monetary savings as a result of de
segregation. There will be less of a
transportation problem, fewer teachers
are needed and maintenance will de
crease as a result of the closures.
Willis explained that it would be dif
ficult to determine the extent of the
savings because salaries have gone up
and other educational costs have in
creased. But, he went on, the costs
would have gone higher if desegrega
tion had not been started in 1956.
There has been very little discord as
a result of desegregation in Logan
County. In fact, the biggest complaint
has come from Negroes who say their
own people have resisted the mixing
of the races.
Not only have all Negro teachers
been transferred to other schools, said
Willis, but since desegregation was be
gun several additional Negro teachers
have been hired.
Four of the former Negro schools are
not now in use, but the board has plans
to use them later. One, Aracoma High
School, will be used this summer and
fall as an adult retraining center and
may later be made over into a branch
junior college of Marshall University.
Legal Action
Court Expected
To Set Hearing
In School Suit
A hearing date in the school deseg
regation proceeding by the National
Association for the Advancement of
Colored People against the Raleigh
County Board of Education probably
will be docketed when the next term
of U.S. District Court opens in Beckley
Aug. 1.
A federal court proceeding by the
NAACP against the Raleigh County
school board (Taylor v. Raleigh County
Board of Education) six years ago was
settled without going to trial but in
conferences between the deceased Judge
Ben Moore and opposing lawyers. The
settlement involved a voluntary deseg
regation plan.
In May of this year the NAACP pe
titioned Federal Judge John A. Field
of Charleston, Moore’s successor, to re
open the Raleigh case. The NAACP
charged the school board with having
arranged school zones in “unnatural
and unfair ways” that fostered segre
gation.
The school board filed a reply saying
the “allegations on this point are un
true. The board has never attempted
to zone and gerrymander the entire
school area of Raleigh County or any
part of it to keep the schools segre
gated.”
Judge Field annually holds a term of
court at Beckley, which is the county
seat of Raleigh County.
Six Years Ago
The Raleigh case six years ago grew
out of one brought by the NAACP
against the Greenbrier school board
(Dunn v. Greenbrier County Board of
Education). A hearing was held at that
time in Greenbrier County and after
wards Judge Moore called opposing at
torneys together and got them to agree
to a voluntary desegregation plan.
Cases in several counties were settled
(See WEST VIRGINIA, Page 6)