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PAGE 8-B—MAY, 1964—SOUTHERN SCHOOL NEWS
TEN YEARS IN REVIEW
Significant Excerpts from Court Decisions . . .
The U.S. Supreme Court decisions of 1954 and
1955 gave educators and the lower courts wide
latitude in complying with the court’s orders to
end racial discrimination in the public schools.
During the 1954-64 decade, federal and state
courts constantly dealt with new issues arising
from the original decisions. About 400 lawsuits
were filed on school desegregation and related
issues during the period. One of the original
defendants in the School Segregation Cases,
Prince Edward County, Va., remained in the
courts throughout the 10 years and as the 10th
anniversary of the 1954 decision approached,
the county school officials once again were be
fore the Supreme Court. Excerpts from the
court decisions given below represent the rul
ings on the major legal issues during the
decade. The parenthetical notation at the end of
each excerpt gives the location in Race Rela
tions Law Reporter by volume and page num
ber.
School Segregation Cases
“We conclude that in the field of public edu
cation the doctrine of ‘separate but equal’ has no
place. Separate educational facilities are inher
ently unequal. Therefore, we hold that the plain
tiffs and others similarly situated for whom the
actions have been brought are, by reason of the
segregation complained of, deprived of equal pro
tection of the laws guaranteed by the Fourteenth
Amendment.”
“. . .the courts will require that the defendants
make a prompt and reasonable start toward full
compliance with our . . .riding. Once such a start
has been made, the courts may find that addi
tional time is necessary to carry out the riding
in an effective manner. The burden rests upon
the defendants to establish that such time is
necessary in the public interest and is consistent
with good faith compliance at the earliest prac
ticable date. To that end, the courts may con
sider problems related to administration, arising
from the physical condition of the school plant,
the school transportation system, personnel, re
vision of school districts and attendance areas
into compact units to achieve a system of deter
mining admission to the public schools on a non-
racial basis, and revision of local laws and
regulations which may be necessary in solving
the foregoing problems . . .
“The judgments below . . .are remanded to the
District Courts to take such proceedings . . .as
are necessary . . .to admit to public schools on a
racially nondiscriminatory basis with all delib
erate speed the parties to these cases.”
U.S. Supreme Court, May 17,1954, and May 31,
1955, Brown v. Topeka (RRLR 1:9, 12)
Compliance
“. . .the Supreme Court . . .has not decided that
the federal courts are to take over or regulate the
public schools of the states. It has not decided
that the states must mix persons of different
races in the schools . . .What it has decided, and
all that it has decided, is that a state may not
deny to any person on account of race the right
to attend any school that it maintains . . .The
Constitution, in other words, does not require in
tegration. It merely forbids discrimination. It does
not forbid such segregation as occurs as the re
sult of voluntary action. It merely forbids the use
of governmental power to enforce segregation.”
U.S. (Three-Judge) District Court, July 15,1955,
Briggs v. Elliott (RRLR 1:74)
Colleges
“That the decision of the Supreme Court was
limited to the facts before it is true, but the rea
soning on which the decision was based is as
applicable to schools for higher education as to
schools on the lower level...
“There is nothing in the . . .statements of the
court to suggest that the reasoning does not apply
with equal force to colleges as to primary schools.”
U.S. (Three-Judge) District Court, Sept. 16,1955,
Frasier v. University of North Carolina (RRLR
1:117-8)
‘With All Deliberate Speed’
“Of course, in many locations, obedience to the
duty of desegregation would require the immedi
ate general admission of Negro children, other
wise qualified as students for their appropriate
classes, at particular schools. On the other hand,
a District Court, after analysis of the relevant
factors (which of course, excludes hostility to
racial desegregation), might conclude that justi
fication existed for not requiring the present non-
segregated admission of all qualified Negro child
ren. In such circumstances . . .the court should
scrutinize the program of the school authorities
to make sure that they had developed arrange
ments pointed toward the earliest practicable
completion of desegregation, and had taken ap
propriate steps to put their program into effec
tive operation. It was made plain that delay in
any guise in order to deny the constitutional
rights of Negro children could not be counten
anced, and that only a prompt start, diligently
and earnestly pursued, to eliminate racial segre
gation from the public schools could constitute
good faith compliance. State authorities were thus
duty bound to devote every effort toward initia
ting desegregation and bringing about the elim
ination of racial discrimination in the public
school system.”
U.S. Supreme Court, Sept. 29, 1958, Aaron v.
Cooper (RRLR 111:856-7)
“Given the extended time which has elapsed,
it is far from clear that the mandate of the second
Brown decision requiring that desegregation pro
ceed with ‘all deliberate speed’ would today be
fully satisfied by types of plans or programs for
desegregation of public educational facilities
which eight years ago might have been deemed
sufficient. Brown never contemplated that the
concept of ‘deliberate speed’ would countenance
indefinite delay in elimination of racial barriers
in schools, . ..
“The nature of the ultimate resolution effected
in the second Brown decision largely reflected no
more than a recognition of the unusual and par
ticular problems inhering in desegregating large
numbers of schools throughout the country. The
careful specification of factors relevant to a de
termination whether any delay in complying fully
and completely with the constitutional mandate
would be warranted demonstrated a concern that
delay not be conditioned upon insufficient reasons
or, in any event, tolerated unless it imperatively
and compellingly appeared unavoidable.”
U.S. Supreme Court, May 27, 1963, Watson v. City
of Memphis (RRLR VIII: 381-2)
Delay and Violence
“The constitutional rights of respondents are
not to be sacrificed or yielded to the violence
and disorder which have followed upon the ac
tions of the Governor and Legislature . . .Thus
law and order are not here to be preserved by
depriving the Negro children of their constitu
tional rights. The record before us clearly estab
lishes that the growth of the Board’s difficulties
to a magnitude beyond its unaided power to con
trol is the product of state action. Those difficul
ties can also be brought under control by state
action.”
U.S. Supreme Court, Sept. 29, 1958, Aaron v.
Cooper (RRLR Vol. Ill: 860)
Interposition
“The command of the Fourteenth Amendment
is that no ‘State’ shall deny to any person within
its jurisdiction the equal protection of the laws
. . .In short, the constitutional rights of children
not to be discriminated against in school admis
sion on grounds of race or color declared by this
court in the Brown case can neither be nullified
openly and directly by state legislators or state
executive or judicial officers, nor nullified indi
rectly by them through evasive schemes for seg
regation, whether attempted ingeniously or in
genuously.’ . . .
“Article VI of the Constitution makes the Con
stitution the ‘supreme law of the land.’ In 1803
. . .Marbury v. Madison . . . declared the basic
principle that the federal judiciary is supreme
in the exposition of the law of the Constitution,
. . .It follows that the interpretation of the Four
teenth Amendment enunciated by this Court in
the Brown case is the supreme law of the land...
“It is . . .true that the responsibility for public
education is primarily the concern of the States,
but it is equally true that such responsibilities..
must be exercised consistently with federal con
stitutional requirements as they apply to state
action . . .State support of segregated schools
through any arrangement, management, funds or
property cannot be squared with the Amend
ment’s command that no State shall deny to any
person within its jurisdiction the equal protec
tion of the laws . ..”
U.S. Supreme Court, Sept. 29, 1958, Aaron v.
Cooper (RRLR 111:860-2)
Class Action
“. . .The court’s consideration of these problems
is facilitated by the presence of multiple plain
tiffs. The effect of a particular practice or pro
cedure may be determined more readily in the
light of its impact upon a number rather than
upon one alone. On the other hand . . .a school
board may encounter difficult administrative prob
lems as it effects a desegregation of its schools,
but such problems might be obscured or unap-
parent if the only question before the court was
the possible reassignment of a single pupil.
“There being common questions of fact, these
multiple plaintiffs were entitled . . .to join in one
action.”
U.S. Fourth Circuit Court of Appeals. Dec. 7, 19fg
Brunson v. Clarendon County (RRLR VII: 1074)
14tli Amendment’s Validity
“. . .in Coleman v. Miller, . . . the Supreme
Court . . .did substantially indicate its view
that the courts do not have jurisdiction to in
quire into the manner, means and methods used
to make the Fourteenth Amendment a part of
the Federal Constitution. In other words, the
adoption of the Fourteenth Amendment was
treated by the Court in this case as a political
question which addressed itself to the legislative
branch of the government and not to the judicial
branch.”
U.S. District Court, Oct. 15,1956, Kelley v .
Nashville (RRLR 1:1043-4)
Pupil Assignment Plans
“. . .This present opinion must be limited to the
constitutionality of the law upon its face. The
School Placement Law furnishes the legal ma
chinery for an orderly administration of the pub
lic schools in a constitutional manner by the
admission of qualified pupils upon a basis of in
dividual merit without regard to their race or
color. We must presume that it will be so admin
istered. If not, in some future proceeding it is
possible that it may be declared unconstitutional
in its application.”
U.S. District Court, May 9,1958, Shuttlesworth
v. Birmingham Board of Education (RRLR 111:434)
“The standards and criteria of the pupil assign
ment law cannot be given application to preserve
imposed segregation. The obligation to disestablish
imposed segregation is not met by applying place,
ment or assignment standards, educational theor
ies or other criteria so as to produce the result
of leaving the previous racial situation existing
as it was before. If application of standards and
criteria has the effect of preserving a created
status of constitutional violation, such application
fails to constitute a sufficient remedy in dealing
with the constitutional wrong.”
U.S. Eighth Circuit Court of Appeals, March 2,
1961, Norwood v. Tucker (RRLR VI: 67)
“The court cannot approve the Tennessee Pupil
Placement Law as a plan for accomplishing de
segregation of the schools. This law, as shown
on its face, is not a plan for desegregation nor
is desegregation a part of its subject matter or
purpose . . .its real purpose is to codify the law
as it already existed, with the addition of certain
procedural regulations . . .
“The Pupil Placement Law at best provides a
most cumbersome and time-consuming procedure
to accomplish transfers of students; and it has
not been shown . . .how it would or could accom
plish desegregation . . .It is not . . .a “prompt
and reasonable start” toward desegregation. On
the contrary, it would cause an unreasonable
delay in effectuating the principle of the Brown
cases.”
U.S. District Court, Nov. 22, 1961, Sloan v. Wilson
County (RRLR VI: 1,000)
(Continued on Next Page)
COURT ACTIONS
Some Flesh Has Been
(Continued from Page 1-B)
tional. Cases attacking the laws some
times have taken years to bring to a
conclusion. When one law, or set of
laws, has been invalidated, new laws
have been passed to take their place,
starting the legislate-litigate cycle
anew.
The laws passed by the “hard core”
and “token compliance” states fall into
a few major categories. Among them
are pupil assignment plans, school-
closing or local option plans, tuition
grant plans, private school plans and
resolutions of interposition. Some of
them have stood the test so far, and
a number have been declared uncon
stitutional.
Pupil Assignment Laws
By declining to review decisions of
the lower federal courts, the Supreme
Court has let stand decisions which
have found the pupil assignment laws
of North Carolina and Alabama to be
constitutional on their face. A better
way to put it is that they were not
declared unconstitutional. The courts
have left no doubt that ultimately the
constitutionality of pupil assignment
laws will depend on the manner in
which they are administered. In the
spring of 1961 the Fifth Circuit Court
of Appeals held that the Board of Edu
cation in Little Rock, Ark., was using
that state’s pupil assignment act un
constitutionally. In the spring of 1962
the Sixth Circuit Court of Appeals
held that the Tennessee pupil assign
ment law could not be used as a plan
to desegregate schools. At approxi
mately the same time a United States
district court in Louisiana held: “How
ever valid a pupil assignment act may
be on its face, it may not be selectively
applied. Moreover, where a school
system is segregated, there is no con
stitutional basis whatever for using a
pupil placement law.” In the fall of
1962 the Fourth Circuit Court ordered
the Durham, N.C., Board of Education
to submit a suitable plan for ending
existing discrimination or desist from
applying the state pupil placement
law in an unconstitutional manner. In
January of 1963 the federal district
judge before whom the Durham case
had been argued ruled that Negro
children in Caswell County, N.C.,
should have complete freedom of
choice in the selection of schools they
want to attend. Although the federal
courts have upheld the right of school
boards to assign pupils to schools,
clearly they will not permit the use
of pupil assignment acts to preserve
racial segregation.
Closing The Schools
State laws that provide the option
of closing schools, rather than desegre
gating them, also are under attack in
the federal courts. The most dramatic
example of this is in Prince Edward
County, Va., where since 1959 all pub
lic schools have been closed. The white
children of the county have received
their education in private schools, but
a private school opened only in 1963
for Negro children.
The Prince Edward County case
now is before the U.S. Supreme Court,
and a decision is expected this spring.
The case has been in the lower federal
courts and the Virginia state courts
for years, and has produced conflicting
decisions. Federal District Judge Oren
Lewis held that the public schools of
Prince Edward County could not be
closed to avoid desegregation while
other schools elsewhere in Virginia
remained open. The Fourth Circuit
Court of Appeals, however, ruled that
“there is nothing in the Fourteenth
Amendment which requires a state, or
Added to Bones of
Decision
any of its political subdivisions with
freedom to decide for itself, to pro
vide schooling for any of its citizens ..”
The Virginia State Supreme Court
found nothing in the State Constitu
tion to require that public schools be
operated in the county.
Meanwhile the public schools of
the county remain closed. The private
school operated by the Prince Ed
ward School Foundation has been
deprived of all state support under
a ruling of the federal district court
that public tuition grants cannot be
used in private, segregated schools as
long as public schools remain closed.
In a St. Helena Parish, La., case,
the judges in emphatic language de
clared unconstitutional a Louisiana
law permitting local school boards to
close schools rather than to comply
with orders to desegregate them. The
judges’ opinion called the law “a trans
parent artifice designed to deny the
plaintiffs their declared constitutional
right to attend desegregated public
schools.” The court said, “It is clear
enough that, absent a reasonable basis
for so classifying, a state cannot close
the public schools in one area while,
at the same time, it maintains schools
elsewhere with public funds.” Nor, the
judges added, can the “local option
device save a law if it violates the
equal protection clause or any other
constitutional provisions.” They con
cluded that “the requirement of a
popular referendum on the question
of closure adds nothing to the chal
lenged statute” since “no plebiscite
can legalize an unjust discrimination.”
The three-judge court in the New
Orleans case ruled that the doctrine
of interposition is not constitutional.
In addition to its rulings on the var
ious laws passed by state legislatures,
the courts have considered the plans
of school systems for desegregation.
The plan adopted by Nashville,
Term., to desegregate schools one
grade each year, beginning in the first
grade, was upheld by the Supreme
Court when it declined to review a
lower court decision. The Supreme
Court also let stand a ruling of the
Third Circuit Court voiding a grade-
a-year plan for the state of Delaware.
The Third Circuit Court referred to
rulings of other courts upholding
grade-a-year plans but said that what
constitutes “with all deliberate speed”
and a “reasonable start towards full
compliance” could only be decided “on
due consideration of all pertinent fac
tors and circumstances.” In simpler
language, what one area may do an
other may not do. The Supreme Court
heard arguments in March on the
Atlanta, Ga., case. Principally involved
is that city’s grade-a-year plan, which
began in the twelfth grade and has
gone downward each year.
Dual Attendance Zones
In a case coming from Alexandria,
Va., the Fourth Circuit Court of Ap
peals held that “the maintenance of a
dual system of attendance areas based
on race offends the constitutional rights
of the plaintiffs.” In several cases
United States district courts have or
dered school systems to eliminate dual
attendance zones. Two of the school
systems affected by such rulings are
those of Escambia County, Fla., and
the city of Durham, N.C. Under the
dual attendance zone plan, school
boards assign children to the schools
which they “normally” would attend.
It is assumed that Negro children nor
mally would attend Negro schools and
white children normally would attend
white schools. Thus Negro and white
children living in the same geographic
area are assigned to different schools.
In three Virginia cases, federal dis
trict and appellate courts held that
criteria and tests could not be used
in assigning Negroes unless the same
tests were used in assigning whites
to schools.
In 1963 the Supreme Court held tha
minority race transfer rules adopted
by a number of school systems were
unconstitutional. The cases came frorr-
two school systems in Tennessee. T c
plans of both systems gave automa w
transfer privileges to a pupil assign
to a school in which his race was
the minority. ...
The first school case to reach
Supreme Court after its 1955 decisi
came from Little Rock. In this dee&
the court declared, “The constitute ^
rights of respondents are not to be s*
rificed or yielded to the violence
disorder which have followed the^
tions of the Governor and the Leg&
ture.” j e J
The effects of a decision han
down by the Fourth Circuit Co ^
Appeals within a few months atte ^
1955 Brown decision were felt thr
out the decade. In the Clare .j
County, S.C., case the Fourth .
Court held: “. . .The Constitution.^
other words, does not requirn^g.
gration. It merely forbids ° 1S —$<&
tion. It does not forbid such se„
as occurs as the result of '° gt
action. It merely forbids the geg'
governmental power to enfor
regation.”
Administrative Procedures ^
Another key decision of the y
Circuit Court was handed in
the McDowell County, NA-, Ae
December of 1955. In this e gtat £
Circuit Court said: “Where - str ati^
law provides adequate a , su<^
procedures for the protectwn
rights, the federal courte