Below is the OCR text representation for this newspapers page.

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