MOBILE, ALA., January 30, 1967. Mrs. LURLEEN B. WALLACE, Governor, State of Alabama, We urge our State to meet the reasonable requirements as set forth by the Department of Health, Education, and Welfare for public assistance and child welfare programs to end a deplorable situation which may deprive two hundred thousand elderly and needy Alabamians of food, rainment and shelter unless the spurious issue involved is settled. The plight of these people should not be made a political football in what appears to be a power struggle with the Federal Government. If Alabama crosses the Rubicon in this matter we may reap retributive justice which could bring despair to our indigent people and a serious defeat to our economy, social order and image. J. L. LEFLORE, The Citizens' Committee, Non-Partisan Voters League, JANUARY 27, 1967. DEAR SENATOR LONG: I think Mr. Wallace has a point-see that people of Alabama are taken care of and get on then with legality part after. It certainly will give the people of the country a bad taste since we are feeding the world without a test of legality, etc. I wouldn't be intimidated into signing anything without reading the fine print let alone something I thought was illegal. Respectfully yours, Mrs. OLIVE BENKBY. P.S. The people of other countries might get jittery-thinking we're running out of money. BAY MINETTE, ALA., January 27, 1967. Senator RUSSELL B. LONG, Washington, D.C. DEAR SENATOR LONG: The State of Alabama is in trouble. As you know the welfare fund plans to be cut off by February 28th is the dead line. You see the blind elder homeless one will suffer. The man that got job it won't hurt them. It looks hard to punish the blind who have no control. It seems that you are on this committee. It looks hopeless to me. It may be you could persuade them not to cut off the welfare fund from needy children. Yours in His name. Yours truly, MCKINLEY INGE. Senator RUSSELL LONG, ALABAMA OLD-AGE PENSION FOUNDATION, INC., DEAR SENATOR LONG: As the first and only President of the Alabama Old-Age Pension Foundation, a non-profit corporation organized in 1958, I am writing to urge that you and your great Committee which is considering the dispute between the State of Alabama and Mr. Howe look to the real parties of interest, every person in these United States. Surely an attempted grasp of power politically on the part of a Federal Bureau should not be allowed to use the old, sick and infirm in Alabama as hostages to be starved at the will of one federal employee wishing to assert his authority. You may be sure and each member of your Committee they will be remembered in the prayers of the old, sick and infirm who wish to be released from the threatened grasp of Mr. Howe in an effort to demonstrate to an elected official the authority of an appointed official. Respectfully, C. E. GARRETT. [From the Monroe, Louisiana, Morning World, Jan. 21, 1967] Whatever further evidence we may need that the federal government is bent on confiscating the property of those who do not conform to its whims and orders is found in Alabama. In that state, some 200,000 recipients of welfare payments of different kinds may be cut off because former Governor George Wallace, who has passed from the stage of governor to that of assistant or aide to his wife, Mrs. Lurleen Wallace, the new governor, has fought against the national regime's efforts to dominate and socialize this nation. The federal government is about to institute a program of confiscation by taxation against Alabama. It contemplates seizure of private property, namely income, without compensating the people from which this money is taken. Governor Wallace first defied the federal government's right to tell the people of Alabama what they must do in the matter of choosing their associates. He declared the federal government was not all-powerful and asserted the people of Alabama should be governed by state laws and by democratic processes. He denied the federal government's right to say that the schools of Alabama must be integrated and stood at the door of the University of Alabama to tell federal agents they had no right to enter. Only when the government took over the National Guard in Alabama and told him he would be thrust aside forcibly and that Negro students would be escorted into the university by armed forces did he yield. He yielded then only physically but not in spirit. Wallace has made no secret of his war against many of the federal government's programs. He has been among those opposing many types of federal aid on the the ground that federal aid means federal control. He has cast himself somewhat in the role of David and has gone out to battle Goliath, the federal giant. In this, he has found strong support in many other parts of the nation. In 1964 before the 1965 nationwide turn against "black power" movements in this country, Wallace ran in three states-Wisconsin, Maryland and Indiana-on presidential preferential primary tickets and made amazingly good showing against favored candidates in those states. He has talked of forming a third party. Because of the powerful potential Wallace has built in politics, the national administration has set out to try to beat him down to size. To do this, it has announced its intention of engaging in "taxation without representation" or "confiscation without compensation." The dictator-happy national administration has tossed a stone at Wallace that could seriously hurt the entire state of Alabama. The plan is to cripple Alabama financially by taxing it and then by failing to give it back its share of federal money. John W. Gardner, Secretary of the Health, Education and Welfare Department, has ordered about $96 million a year in federal public welfare aid to Alabama cut off effective February 28. The reason given for this is that since 1965 the Alabama Department of Pensions and Security has refused to signify compliance with Title 6 of the 1964 Civil Rights act (which we believe to be unconstitutional because it denies individuals the right to choose their associates). It is this section which requires elimination of discrimination by states receiving federal aid money, and which allows the federal government to halt the flow of such money, if it decides discrimination exists. In order to gain passage of this inquitous bill, it was necessary for the national administration to give Congressmen from the Northern states the impression their states would not be affected, as they were told a "pattern of discrimination" had to be established. Many of the Northern states still practice segregation by districting. It is our contention that school segregation, hospital segregation and other kinds of segregation do not constitute discrimination-and that position was taken by the United States Supreme Court prior to the era of Chief Justice Earl Warren and reportedly even he formerly took an opposite position from his present stand. Former Governor Wallace and the powers in Washington have been through other skirmishes, each of which has left state rights reduced but none of which has harmed Wallace politically. In this confrontation, a court challenge of the Federal action is expected to delay any welfare fund cutoff well beyond the February 28 deadline. But there is an issue larger than whether Wallace or the Federal Government will prevail. Both sides are toying in a contemptuous way with the lives of about 200,000 Alabama citizens, more than half of them elderly people who are threatened with loss of old-age and medical-care benefits. About 11 per cent of the Federal aid which could be stopped goes to 17,000 needy families, and about eight per cent to persons who are permanently disabled. To make these people suffer because of Governor Wallace's feud with federalism would be a heartless act on the part of HEW. A secondary issue lies in the fact that Alabama income taxpayers would continue to be nicked by the Federal Government for HEW's national welfare programs while possibly being deprived of any of the benefits. It is easy enough for Washington bureaucrats to say that George and Lurleen Wallace and the voters of Alabama asked for it, but it is brutal to penalize the poor, the aged and the disabled in an effort to punish the Alabama power structure. This is another example of the federal government's determination to use “aid” money as a political weapon. (Information requested by the chairman on p. 89 follows:) Hon. RUSSELL B. LONG, Chairman, Finance Committee, U.S. Senate, Washington, D.C. MARCH 2. 1967. DEAR SENATOR LONG: During the course of Secretary Gardner's testimony before your Committee on February 23, 1967, you raised the question whether the Supreme Court's decision in the Brown case requires the desegregation of a public school faculty in which teachers have previously been assigned on a racial basis as part of a dual racial public school system. You asked that this Department furnish the Committee a memorandum discussing the case law in this area. The case law, I believe, clearly imposes on public school authorities the affirmative, constitutional duty to desegregate their faculties so that the rights of pupils to the "equal protection of the laws” under the Fourteenth Amendment will no longer be denied. In 1954 the Supreme Court of the United States declared that the segregation of public school students according to race violates the Fourteenth Amendment. Brown v. Board of Education, 347 U.S. 483 (1954). A year later, the Court, in determining how judicial relief could best be fashioned, mentioned the problem of reallocating staff as one of the reasons for permitting the desegregation process to proceed with "all deliberate speed." Brown v. Board of Education, 349 U.S. 294, 301 (1955). Two cases decided by the Supreme Court in late 1965 indicate that school boards may no longer postpone the responsibility owed their students of desegregating faculty. In Bradley v. School Board of Richmond, Virginia, 382 U.S. 103 (1965), the Court took the view that faculty segregation had a direct impact on a desegregation plan, and that it was improper for the trial court to approve a desegregation plan without inquiring into the matter of faculty segregation. In reaching this conclusion the Court, in a unanimous opinion, commented that "there is no merit to the suggestion that the relation between faculty allocation on an alleged racial basis and the adequacy of the desegregation plans is entirely speculative." And in ruling that there should be no further delay in a hearing on the question of faculty desegregation, the Court further emphasized that "delays in desegregation of school systems are no longer tolerable." 382 U.S. at 105. In Rogers v. Paul, 382 U.S. 198 (1965), the Supreme Court extended the undelayed right to challenge teacher segregation to students who had not yet themselves been affected by the School Board's gradual desegregation plan. The Court stated (382 U.S. at 200): "To theories would give students not yet in desegregated grades sufficient interest to challenge racial allocation of faculty: (1) that racial allocation of faculty denies them equality of educational opportunity without regard to segregation of pupils; and (2) that it renders inadequate an otherwise constitutional pupil desegregation plan soon to be applied to their grades." Relying on the Bradley case, the Court of Appeals for the Fifth Circuit, the circuit covering the states of Alabama, Florida, Georgia, Louisiana, Mississippi and Texas, ruled in January 1966, in a suit also brought by Negro students, that it was "essential” that the plan of desegregation for Jackson, Mississippi, “provide an adequate start toward elimination of race as a basis for the employment and allocation of teachers, administrators, and other personnel." Singleton v. Jackson Municipal Separate School District, 355 F. 2d 865, 870. And in a case decided in August 1966, the same Court ruled that the plan of desegregation for Mobile, Alabama, "must be modified in order that there be an end to the present policy of hiring and assigning teachers according to race by the time the last of the schools are fully desegregated for the school year 1967-68." Davis v. Board of School Commissioners of Mobile County, 364 F. 2d 896, 904. The Courts of Appeal for the Fourth Circuit (Maryland, North Carolina, South Carolina, Virginia and West Virginia), the Eighth Circuit (Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota) and the Tenth Circuit (Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming) have similarly held. In a suit brought by pupils in Durham, North Carolina, the Court stated: "We read the [Bradley] decision as authority for the proposition that removal of race considerations from faculty selection and allocation is, as a matter of law, an inseparable and indispensable command within the abolition of pupil segregation in public schools as pronounced in Brown v. Board of Education, supra, 347 U.S. 483. Hence no proof of the relationship between faculty allocation and pupil assignment was required here. The only factual issue is whether race was a factor entering into the employment and placement of teachers." Wheeler v. Durham City Board of Education, 363 F. 2d 738, 740 (C.A. 4, 1966). The Court in Wheeler went on to require (at p. 741): "Vacant teacher positions in the future *** should be opened to all applicants, and each filled by the best qualified applicant regardless of race. Moreover, the order should encourage transfers at the next session by present members of the faculty to schools in which pupils are wholly or predominantly of a race other than such teacher's. A number of the faculty members have expressed a willingness to do so. Combined with the employment of new teachers regardless of race, this procedure will, within a reasonable time, effect the desegregation of the faculty." Chambers v. Hendersonville Board of Education, 364 F. 2d 189 (C.A. 4, 1966), involved the problem of Negro teachers who lost their jobs when an all-Negro school was abolished. The School Board treated them as new applicants. The Court held that this was discriminatory and invalid under the Fourteenth Amendment, stating (at p. 192): "First, the mandate of Brown v. Board of Education, 347 U.S. 483 (1954), forbids the consideration of race in faculty selection just as it forbids it in pupil placement. See Wheeler v. Durham City Board of Education, 346 F. 2d 768, 773 (4 Cir. 1965). Thus the reduction in the number of Negro pupils did not justify a corresponding reduction in the number of Negro teachers. Franklin v. County Board of Giles County, 360 F. 2d 325 (4 Cir. 1966). Second, the Negro school teachers were public employees who could not be discriminated against on account of their race with respect to their retention in the system. Johnson v. Branch, 364 F. 2d 177 (4 Cir. 1966), and cases therein cited. * * *" In a suit brought by pupils in El Dorado, Arkansas, the Eighth Circuit Court of Appeals recognized "the validity of the plaintiff's complaint regarding the [School] Board's failure to integrate the teaching staff. Such discrimination is proscribed by Brown and also the Civil Rights Act of 1964 and the regulations promulgated thereunder." Kemp v. Beasley, 352 F. 2d 14, 22 (1965). The Court elaborated on this theme in Smith v. Board of Education of Morrilton, 365 F.2d 770, 778 (1966): "It is our firm conclusion that the reach of the Brown decisions, although they specifically concerned only pupil discrimination, clearly extends to the proscription of the employment and assignment of public school teachers on a racial basis. Cf. United Public Workers v. Mitchell, 330 U.S. 75, 100 (1947); Wieman v. Updegraff, 344 U.S. 183, 191-192 (1952). See Colorado Anti-Discrimination Comm'n v. Continental Air Lines, Inc., 372 U.S. 714, 721 (1963). This is particularly evident from the Supreme Court's positive indications that non-discriminatory allocation of faculty is indispensible to the validity of a desegration plan. Bradley v. School Board of the City of Richmond, supra; Rogers v. Paul, supra. This court has already said, 'Such discrimination [failure to integrate the teaching staff] is proscribed by Brown and also the Civil Rights Act of 1964 and the ▾ regulations promulgated thereunder.' Kemp v. Beasley, supra, p. 22 of 352 F. 2d." In a recent decision of the Eighth Circuit, Clark v. Board of Education of Little Rock School District, No. 18368 (December 15, 1966), the Court required of the Little Rock, Arkansas School Board (slip op., p. 15) a "positive program aimed at ending in the near future the segregation of the teaching and operating staff." The Court stated (slip op., p. 13): "We agree that faculty segregation encourages pupil segregation and is detrimental to achieving a constitutionally required non-racially operated school system. It is clear that the Board may not continue to operate a segregated teaching staff. Bradley v. School Board of City of Richmond, 382 U.S. 103 (1965) *** It is also clear that the time for delay is past. The desegregation of the teaching staff should have begun many years ago. At this point the Board is going to have to take accelerated and positive action to end discriminatory practices in staff assignment and recruitment." The Court then proceeded to outline the essential ingredients which such "action" must include (pp. 13–14): "First, *** future employment, assignment, transfer, and discharge of teachers must be free from racial consideration. Two, should the desegregation process cause the closing of schools employing individuals predominately of one race, the displaced personnel should, at the very minimum, be absorbed into vacancies appearing in the system Smith v. Board of Education of Morrilton School District, No. 32, supra. Third, whenever possible, requests of individual staff members to transfer into minority situations should be honored by the Board. Finally, we believe the Board make all additional positive commitments necessary to bring about some measure of racial balance in the staffs of the individual schools in the very near future. The age old distinction of 'white schools' and 'Negro schools' must be erased. The continuation of such distinctions only perpetrates inequality of educational opportunity and places in jeopardy the effective future operation of the entire 'freedom of choice' type plan." In a suit brought by pupils in Oklahoma City, Oklahoma, the Court of Appeals for the Tenth Circuit recently affirmed a lower court order requiring that by 1970 "there should be the same percentage of non-white teachers in each school as there now is in the system." Board of Education of Oklahoma City Public Schools, Independent District No. 89 v. Dowell, No. 8523 (January 23, 1967), slip op., p. 22, affirming, 244 F. Supp. 971, 977-978 (W.D. Okla. 1965). The District Court had stated (p. 978) that such a requirement provided "for stability in school faculties during the integration process, * * * keying the change to personnel turnover figures indicating that approximately 15% of the total faculty is replaced each year." Although the evidence showed that there was no difference in the quality of performance between the white and non-white personnel in the school system, the Court of Appeals held (p. 22) that where "integration of personnel exists only in schools having both white and non-white pupils, with no non-white personnel employed in the central administration section of the system", there is "racial discrimination in the assignment of teachers and other personnel." Relying on the Supreme Court's decisions in Bradley and Rogers, the Court stated (p. 22) that "[t]he [lower court] order to desegregate faculty is certainly a necessary initial step in the effort to cure the evil of racial segregation in the school system." Numerous district courts, in applying the law as elucidated by the Supreme Court and the courts of appeal of their various circuits, have entered orders in school desegregation cases requiring the desegregation of faculty and staff. In entering such orders, a few of the district courts have also set forth their reasons in memorandum opinions. One such opinion was issued by the United States District Court for the Eastern District of Virginia in refusing to approve a plan submitted by the School Board of Greensville County, Virginia, on the ground that the plan must, but failed, to include a provision for the employment and assignment of staff on a nonracial basis. Wright v. County Board of Greensville County, Virginia, 252 F. Supp. 378 (E.D. Va. 1966). In holding that a faculty desegregation provision approved by the Commissioner of Education was not sufficient, the court stated (at 384): "The primary responsibility for the selection of means to achieve employment and assignment of staff on a nonracial basis rests with the school board. *** Several principles must be observed by the board. Token assignments will not suffice. The elimination of a racial basis for the employment and assignment of staff must be achieved at the earliest practicable date. The plan must contain well defined procedures which will be put into effect on definite dates. The board will be allowed ninety days to submit amendmetns to its plan dealing with staff employment nad assignment practices." |