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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)