Newspaper Page Text
teN years in review
SOUTHERN SCHOOL NEWS—MAY, 1964—PAGE 9-B
on Major Legal Issues of the Past 10 Years
\dministrative Remedies
“ . .The federal courts manifestly cannot oper-
a te the schools. All that they have the power to
,j 0 in the premises is to enjoin violation of con
stitutional rights in the operation of schools by
state authorities. Where the state law provides
adequate administrative procedures for the pro
tection of such rights, the federal courts mani
festly should not interfere with the operation of
the schools until such administrative procedure
has been exhausted and the intervention of the
federal courts is shown to be necessary.”
U.S. Fourth Circuit Court of Appeals, Dec. 1, 1955,
Carson v. McDowell County (RRLR 1:70-1)
“Defendants argue . . .that plaintiffs have not
shown themselves entitled to injunctive relief
because they have not individually applied for
admission to any particular school and been de
nied admission. The answer is that in view of
the announced policy of the respective school
boards any such application to a school other than
a segregated school maintained for colored people
would have been futile; and equity does not re
quire the doing of a vain thing as a condition of
relief.”
U.S. Fourth Circuit Court of Appeals, Dec. 31,
1956, Allen v. Charlottesville (RRLR 11:63)
Tests
“. . .Negroes upon promotion to a mixed school
or a formerly all white school may not be sub
jected to tests if white pupils being promoted to
those same schools are not subjected to the same
tests.”
U.S. Fourth Circuit Court of Appeals, Sept. 9,
1960, Hill v. Norfolk (RRLR V:1068)
Dual Attendance Zones
“Obviously the maintenance of a dual system
of attendance areas based on race offends the
constitutional rights of the plaintiffs and others
similarly situated and cannot be tolerated.”
U.S. Fourth Circuit Court of Appeals, April 20,
1960, Jones v. Alexandria (RRLR V:402)
Grade-a-Year Plans
“In approving the present plan no denial of the
constitutional rights of the plaintiffs or others
similarly situated is involved. Such rights are
distinctly recognized and the plan contemplates
their full enforcement and application in accord
ance with a time schedule which though pro
tracted for the best interests of the school system
as a whole is nevertheless definite and unam
biguous. Full desegregation is not denied. It is
*erely postponed.”
U-S. District Court, June 19, 1958, Kelley v. Board
of Education (RRLR 111:653)
“We are aware that strong courts have held
jn substance that a grade-a-year integration . . .
has met the criteria laid down by the Supreme
Court in its decisions in Brown v. Board of Edu
cation . . .But the all-important issues of inte
gration ‘with all deliberate speed’ and what
constitutes a ‘reasonable start towards full com
pliance’ with the ruling of the Supreme Court
■ • can be decided properly only on due consid
eration of all the pertinent factors and circum
stances ...
In short, integration in . . .Delaware . . .should
not be viewed, gauged or judged by the more
strictive standards reasonably applicable to com
munities which have not advanced as far upon
the road toward full integration.”
U.S. Third Circuit Court of Appeals, Aug. 29,
1960, Ennis v. Evans (RRLR V: 642-3)
Minority Race Transfers
“The recognition of race as an absolute crit
erion for granting transfers . . .only in the direc
tion of schools in which the transferee’s race is
in the majority is no less unconstitutional than its
use for original admission or subsequent assign
ment to public schools.”
U.S. Supreme Court, June 3,1963, Goss v. Knox
ville and Maxwell v. Davidson County (RRLR
VIII: 379)
Closed Schools
. .The Commonwealth of Virginia, having . . .
assumed the responsibility of maintaining and
operating public schools, cannot act through one
of its officers to close one or more public schools
in the state solely by reason of the assignment to
. . .that public school of children of different
races or colors, and, at the same time, keep other
public schools throughout the state open on a
segregated basis. The ‘equal protection’ afforded
to all citizens and taxpayers is lacking in such
a situation. While the State of Virginia, directly
or indirectly, maintains and operates a school
system with the use of public funds, or partici
pates by arrangement or otherwise in the man
agement of such a school system, no one public
school or grade in Virginia may be closed to avoid
the effect of the law as interpreted by the Su
preme Court, while the state permits other pub
lic schools or grades to remain open at the
expense of the taxpayers.”
U.S. (Three-Judge) District Court, Jan. 19,1959,
James v. Almond (RRLR IV: 49)
“There can be no doubt about the character
of education in Louisiana as a state, and not a
local, function. The Louisiana public school sys
tem is administered on a statewide basis, financed
out of fimds collected on a statewide basis, un
der the control and supervision of public officials
exercising statewide authority under the Louisi
ana constitution and appropriate state legisla
tion . . .
. .At least in the area of declared constitu
tional rights, and specifically with respect to
education, the state can no more delegate to its
subdivisions a power to discriminate than it can
itself directly establish inequalities. When a par
ish wants to lock its school doors, the state must
turn the key.
The consequence is that the local option cannot
save Act 2 . . .If it violates the equal protection
clause or any other constitutional provision, en
actment by local opinion will not save it.”
U.S. (Three-Judge) District Court, Aug. 30, 1961,
Hall v. St. Helena Parish (RRLR VI: 698-9)
. .The Fourteenth Amendment . . .prohibits
discrimination by a state, or one of its subdi
visions, against a pupil because of his race, but
there is nothing in the Fourteenth Amendment
which requires a state, or any of its political
subdivisions with freedom to decide for itself, to
provide schooling for any of its citizens . . .
“The injunction order, entered when the school
Board and its Division Superintendent were the
only defendants, required them to abandon their
racially discriminatory practices . . .they aban
doned discriminatory admission practices when
they closed all schools as fully as if they had
continued to operate schools, but without dis
crimination”
U.S. Fourth Circuit Court of Appeals, Aug. 12,
1963, Griffin v. Prince Edward County (RRLR
VIII: 1053)
Tuition Grants, Tax Credits
“By closing the public schools, the Board of
Supervisors have effectively deprived the citizens
. . .with a freedom of choice between public and
private education. County tax funds have been
appropriated (in the guise of tuition grants and
tax credits) to aid segregated schooling . . .
“That . . .is circumventing a constitutionally pro
tected right.
“We do not hold these County ordinances un
lawful. We only hold they become unlawful when
used to accomplish an unlawful end, (the per
petuation of segregated schooling ...) ”
U.S. District Court, Aug. 25,1961, Allen v. Prince
Edward County (RRLR VI: 754)
Federal Impacted-Areas Aid
. .Clearly, the local school boards have not
entered into any specifically enforceable con
tractual obligation not to assign federally con
nected children to local schools on the basis of
race or color . . .
“The consequences of any attempted direct ex
ercise of the war power outside of military bases
without any authorization by Congress and dur
ing peace time are so extreme as to be unthink
able . . .No occasion can arise for the suggested
unprecedented and extremely dangerous exercise
of the war power to affect the operation of the
public schools of the State.”
U.S. Fifth Circuit Court of Appeals, Jan. 7,1964,
U.S.A. v. Madison County (RRLR IX:—)
Teacher Desegregation
“The plaintiffs possess the right, arising under
the due process and equal protection clauses of
the 14th Amendment, with respect to the public
school system of which they are a part, to have
that system operated on a non-racial basis. This
includes . . .assignment of teachers, principals
and supervising and supporting personnel on a
non-racial basis . . .
“There may be no determinations based upon
race or color, in whole or in part, with respect
to the operation of the public school system, or
any of its components. The Brown case is misread
and misapplied when it is construed simply to
confer upon Negro pupils the right to be con
sidered for admission to a ‘white’ school.”
U.S. District Court, Aug. 21, 1962, Braxton v.
Duval County (RRLR VII: 678)
Gerrymandered Districts
“. . .1 see no basis to draw a distinction, legal
or moral, between segregation established by the
formality of a dual system of education, as in
Brown, and that created by gerrymandering of
school district lines and transferring of white
children . . .The result is the same in each case:
the conduct of responsible school officials has
operated to deny to Negro children the oppor
tunity for a full and meaningful educational ex
perience guaranteed to them by the Fourteenth
Amendment . . .
“Having created a segregated school, the Con
stitution imposed upon the Board the duty to
end segregation, in good faith, and with all de
liberate speed.”
U.S. District Judge, Jan. 24,1961, Taylor v. New
Rochelle (RRLR VI: 100)
Racial Imbalance
“The neighborhood school ... is a long and
well established institution in American public
education. . . . With the use of the neighbor
hood school district in any school system with a
large and expanding percentage of Negro popu
lation, it is almost inevitable that a racial im
balance will result in certain schools. Neverthe
less, I have seen nothing . . . which leads me
to believe that the law requires that a school
system developed on the neighborhood school
plan, honestly and conscientiously constructed
with no intention or purpose to segregate the
races must be destroyed or abandoned because
the resulting effect is to have a racial imbalance
in certain schools where the district is populated
almost entirely by Negroes or whites. . .
“Furthermore, requiring certain students to
leave their neighborhood and friends and be
transferred to another school miles away, while
other students, similarly situated, remained in
the neighborhood school, simply for the purpose
of balancing the races in the various schools
would in my opinion be indeed a violation of
the Fourteenth Amendment.”
U.S. District Court, Jan. 29, 1963, Bell v. Gary
(RRLR VIII: 72-3)
“In a publicly supported, mandatory state edu
cational system, the plaintiffs have the civil right
not to be segregated, not to be compelled to at
tend a school in which all of the Negro children
are educated separate and apart from over 99
per cent of their white contemporaries. . . .
“The court does not hold that the neighbor
hood school policy per se is unconstitutional; it
does hold that this policy is not immutable. It
does not hold that racial imbalance and segre
gation are synonymous or that racial imbalance,
not tantamount to segregation, is violative of the
Constitution. It does hold that, by maintaining
and perpetuating a segregated school system, the
defendant Board has transgressed the prohibi
tions of the Equal Protection Clause of the Four
teenth Amendment. The court does not hold that
the Constitution requires a compulsive distribu
tion of school children on the basis of race in or
der to achieve a proportional representation of
white and Negro children in each elementary
school within a school district.”
U.S. District Court, Jan. 4, 1694, Blocker v.
Manhassett (RRLR IX:—)
Five Cases Considered
For Original Decision
First Test of Segregation
Occurred in Courts in 1849
^ HE decisions in the original
D]._p c ^°°l Segregation Cases ap-
P ed to five separate cases—from
°uth Carolina, Virginia, Kansas,
eiaware and the District of
0, umbia—which were combined
or arguments before the U.S.
Supreme Court.
These cases and the dates first filed
^ arr y Briggs Jr., et al v. R. W.
et “I, from Clarendon County,
Cm’ Dorothy E. Davis et al v.
tea School Board of Prince Ed-
County, Va., et al, 1951; Oliver
j> et v - Board of Education of
Belt’ ^ an ■’ et 1951; Ethel Louise
al c U et v - Brands B. Gebhardt et
r ^ rn New Castle County, Del., 1951;
„. ,, Pottswood Thomas Bolling et al
tfict *Sharpe et al, from the Dis-
j^of Columbia, 1950. The combined
ag g on these cases are referred to
v - Topeka, or simply the
Foil decisions '
in - w mg the original arguments
e o eR iber of 1952, the court on
arg^ °’ 1953, asked for additional
Pos ed & p ts on fi ve questions that it
WeH ° ear gument in the cases fol-
rejy October. Even after it had
the co its decision on May 17, 1954,
creca ^ delayed the issuance of de-
lt as , ° P u t the decision into effect,
■t f 0rr ^ the affected parties to help
Dating U ate . these decrees by partici-
^er e r In - S ttC further hearings, which
The °^ ducted A P r d 11-14 of 1955.
Ac W atlonal Association for the
the of Colored People urged
r hci-ec g r *° 'direct the issuance of
des 111 6ac ^ these cases requir-
* et ’temv? gregatiori hy no later than
The a^r of 19 55.”
uorney general of the United
States and the attorneys general of
eight Southern states filed briefs. They
asked the court to provide adequate
time for compliance with its decision
and to allow the federal district courts
to supervise the implementation of the
decision in order to take into account
differences in local conditions. All of
the briefs pointed to the variation in
circumstances between one state and
another and between different locali
ties of the same state. In their oral
arguments, attorneys, in essence, re
stated the positions they had taken in
their briefs.
The Supreme Court handed down
its implementing decree on May 31,
1955, remanding the cases to the low
er courts “to take such proceedings
and enter such orders and decrees
consistent with this opinion as are
necessary and proper to admit to pub
lic schools on a racially non-discrim-
inatory basis with all deliberate speed
the parties to these cases.”
The respective lower courts of ori
gin issued orders in compliance with
the Supreme Court’s rulings. In the
cases from Delaware, Kansas and the
District of Columbia, the defendant
school officials promptly began com
pliance. The other two districts, Prince
Edward County, Va., and Clarendon
County, S.C., have never desegregated
their public schools. The Prince Ed
ward case remained active in the courts
during the first 10 years after the 1954
decision, although the county officials
in 1959 closed the public schools to
avoid desegregation. The Clarendon
County case remained inactive in the
courts, but Negroes from the county
filed another school desegregation case
in 1960, and it is now before the fed
eral courts.
By REED SARRATT
HE FIRST JUDICIAL test of
racial segregation in the
public schools came almost a full
century before the May 17, 1954,
decision of the U.S. Supreme
Court in Brown v. Board of Edu
cation. It occurred not in the
South, but in Boston, Mass.
Boston established its first primary
school for Negro children in 1820. It
wasn’t long before Negroes and aboli
tionists began to seek the integration
of Negro children into the white school
system. The Boston school committee
refused to reverse its policy.
This led, in 1849, to the suit brought
by Benjamin F. Roberts on behalf of
his daughter, Sarah C. Roberts, who
had applied for admission to the pri
mary school nearest her home and
was refused. Charles Sumner repre
sented the plaintiffs in the case, which
finally came before the Supreme Court
of Massachusetts. Sumner argued that
“compulsory segregation from the mass
of citizens is of itself an inequality.”
The Massachusetts Supreme Court
decided that the maintenance of seg
regation was not an unreasonable act.
It emphasized that the Boston school
committee possessed the power to class
ify and distribute school children as
it thought necessary for the good of
the system as a whole. Chief Justice
Shaw wrote with regard to any caste
distinction, which Sumner claimed was
aggravated by segregated schools: “If
it exists, it is not created by law and
probably cannot be changed by law.’
This court decision did not settle
the school segregation question in Mas
sachusetts. The state legislature in 1855
passed an act declaring:
“In determining the qualifications of
scholars to be admitted into any public
school or any district school in this
commonwealth, no distinction shall be
made on account of the race, color,
or religious opinions of the applicant
or scholar.”
In the aftermath of the Civil War, the
13th, 14th, and 15th Amendments were
added to the Constitution. The 13th
abolished slavery. The 15th gave the
Negro the right to vote. The 14th says,
among other things: “No state shall
. . . deny to any person within its
jurisdiction the equal protection of the
laws.”
Expressions of Intent
These amendments are statements of
principle, expressions of intent. They
were not, and could not be, self-im
plementing.
Sumner pressed for enactment of
laws to implement these amendments.
He specifically sought a ban on segre
gation in education, but as a result of
compromises, the Civil Rights Act of
1875, when it passed, contained no ref
erence to education.
Actually, segregation in Southern
schools was a theoretical question.
The South at the end of the Civil
War had few public schools of any
kind. There were no schools at all for
Negroes. In some of the Southern states
it was a crime to teach slaves to read
and write. Education of Negroes fell
to private philanthropic and religious
agencies, and to the federal govern
ment. The American Missionary Asso
ciation led the field. In 1866 Congress
authorized the Freedmen’s Bureau to
engage in educational work. In three
years the Freedmen’s Bureau spent $6
million on Negro schools.
Between 1865 and 1877, when the
last Federal troops were withdrawn
from the South, the Freedmen’s Bu
reau established over 4,000 elementary
schools. The Bureau was concerned ex
clusively with helping Negroes, and
so the schools were, of course, segre
gated. Custom kept them segregated
through the years.
By 1896 almost every Southern state,
and some Northern states, had enacted
laws requiring segregation of the races.
The Supreme Court recognized state -
imposed segregation as constitutional
in the Plessy v. Ferguson decision
handed down in 1896.
Homer Plessy was an octoroon; that
is, he was one-eighth Negro. He
boarded a train to travel from New
Orleans to Covington, La., and sat in
a coach reserved for white passengers.
A conductor told him to move to the
Negro coach, as Louisiana law required.
Plessy refused, and his case finally
came before the U.S. Supreme Court.
The court turned to the Massachu
setts opinion in Roberts v. the City of
Boston in formulating its decision. It
held that state-imposed segregation was
not prohibited by the 14th Amendment.
Segregation was not a “badge of servi
tude.” The 14th Amendment was in
tended to “enforce the absolute equal
ity of the two races before the law”
but “it could not have been intended
to abolish distinctions based upon color,
or to enforce social, as distinguished
from political, equality or a commingl-
(See FIRST, Page 10-B)