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by school authorities. All these powers obviously may be used to create or preserve a pattern of racial segregation.

GERRYMANDERING

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A few cases have arisen recently in which it was contended that school authorities had deliberately established or maintained school attendance zones to promote segregation. In Clemons v. Board of Education of Hillsboro, Ohio, a Federal district court found that an elementary school zone had been established to insure the continuance of the Lincoln School exclusively for Negro children. The facts showed that the Lincoln zone, established by resolution of the board of education, was made up of two completely separated areas, one in the northeast, and one in the southeast section of the city. Nevertheless the court refused to interfere lest it disrupt the orderly administration of the schools.

The United States Court of Appeals for the Sixth Circuit reversed the decision and instructed the district court to order immediate relief for the plaintiffs and to provide for the end of all school segregation at or before the beginning of the next school term. In his concurring opinion judge (now Mr. Justice Stewart) declared: 22

The Hillsboro Board of Education created the gerrymandered school districts after the Supreme Court had announced its first opinion in the segregation cases. The Board's action was, therefore, not only entirely unsupported by any color of State law, but in knowing violation of the Constitution of the United States. The Board's subjective purpose was no doubt, and understandably, to reflect the "spirit of the community” and avoid "racial problems," as testified by the Superintendent of Schools. But the law of Ohio and the Constitution of the United States simply left no room for the Board's action, whatever motives the Board may have had.

In Henry v. Godsell,23 another Federal district court found no basis for the plaintiff's allegations that school attendance zones in Pontiac, Mich., had been changed to compel, or achieve racial segregation."

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The board of education has altered and modified attendance areas from time to time to accommodate changes in population and as a result of the erection of new schools and additions to existing schools.

. . . In the absence of a showing that attendance areas have been arbitrarily fixed or contoured for the purpose of including or ex

cluding families of a particular race, the board of education is free to establish such areas for the best utilization of its educational facilities.

In Taylor v. Board of Education of New Rochelle, N.Y.,25 in 1961 the court found that the school board had denied the plaintiffs equal protection of the laws by deliberate gerrymander of the Lincoln School attendance zone to create and maintain an all-Negro school. The crucial facts appear in the following summary.

In 1930 the school board established highly irregular school zone boundaries so that the Lincoln zone would include little but Negro areas, while the adjoining Webster zone was mainly white. In ensuing years, as the Negro area expanded to the west of Lincoln, its attendance zone was extended to contain them. Similar action was taken to keep the nearby Mayflower School white in enrollment. White children remaining in the Lincoln zone were allowed to transfer to other schools. The result was that children living in adjoining houses attended different schools solely because of race. White children living south of Lincoln were assigned to Mayflower, half a mile north of Lincoln. Then early in 1949 the board, adopting a resolution to study zone lines, banned all transfers as of the following September 1. From January 1949 to the date of the Taylor suit no redistricting was adopted, although the Board discussed the problem, hired experts, made surveys, and reiterated its belief in racial equality. Various recommendations made to the Board during this period are outlined in the court's opinion. Both the Johnson and Dodson reports emphasized the racial concentrations in the schools due to their attendance zones. The Dodson report warned that "to do nothing about it is to encourage racial imbalance. To do nothing about it is a decision just as powerful and as important as a decision to try to do something about the imbalance." 26

In reply to the Board's contention that the School Segregation Cases did not apply, since the Lincoln School was not a component of a de jure system of separate white and Negro schools, the court said:

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... I 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 as in the instant

case.

. . The result is the same in each case: the conduct of responsible school officials has operated to deny to Negro children the opportunities for a full and meaningful educational experience guaranteed to them by the Fourteenth Amendment.

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The Board also claimed that the established attendance zones merely reflected its policy of neighborhood schools which it said was both

reasonable, and educationally sound. The court rejected this defense too, for it: 28

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ignores the essential nature of the plaintiffs' position. They are not attacking the concept of the neighborhood school as an abstract proposition. They are, rather, attacking its application so as to deny opportunities guaranteed to them by the Constitution. It is a legal truism that 'acts generally lawful may become unlawful when done to accomplish an unlawful end.' Western Union Telegraph Co. v. Foster, 247 U.S. 105, (1918) (Holmes, J.). Moreover, as Justice Frankfurter succinctly noted in his concurring opinion in Cooper v. Aaron, 358 U.S. 1, 25 (1958): "Local customs, however hardened by time, are not decreed in heaven."

The neighborhood school policy certainly is not sacrosanct. It is valid only insofar as it is operated within the confines established by the Constitution. It cannot be used as an instrument to confine Negroes within an area artificially delineated in the first instance by official acts.

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To the extent that lower court decisions can do so, these cases make it clear that the principle of the School Segregation Cases applies to racial segregation in the North and West resulting from official action, in violation of State law, as well as to segregation in the South.

There is some evidence of segregation by gerrymander in the North and the West. Witnesses testifying at the Commission's California hearings did not convey the impression that it was prevalent in that State. One said that: 29

No overt evidence has been presented in recent years which would prove that neighborhood school zones are set along racial or ethnic lines. While there may be instances of such juggling here and there, public school zoning in Los Angeles City and in surrounding cities is reasonable and fairly static, unless traffic or safety hazards, or the opening of a new school nearby, forces a readjustment of zoning.

The same witness suggested that it was easy to zone in such a way that boundary lines "do not necessarily fall on housing lines" 30 particularly, at the secondary level where one school often serves several communities.31

At the Commission's Detroit hearing, however, testimony strongly suggested that Detroit was rezoned in 1959 to conform to changing residential patterns and thus to confine Negro residents to predominantly Negro schools.32 More specifically, it was charged attendance zones of

two elementary schools were changed to coincide with racial residential patterns and the schools were also shifted from the predominantly white West Administrative District to the predominantly Negro Center District. The latter shift meant that the children attending those schools would be required to attend overwhelmingly Negro junior and senior high schools. Negro parents protested that their children were being forced back into inferior, uniracial schools. They also argued that the change would hasten the exodus of whites who were also well aware of the limitations of predominantly Negro schools. The charge of zoning for the purpose of confining the Negro population to the Center District was confirmed by a member of the Detroit Board of Education.33 A compromise was reached whereby the children from the three elementary schools could attend junior high school in the old district and some would have the option of attending high school there.3

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TRANSFER POLICY

Administrative policy on transfer of pupils from schools in their own zones of residence to schools of their choice may reinforce or alleviate segregation. In the New Rochelle case discussed above transfers at first were granted freely to permit white students living in the Lincoln zone to attend predominantly white schools in other zones. After 1949 the school board maintained segregation at Lincoln by restricting transfers. The Los Angeles program which permits any student to move upon request to any school in which space is available tends, in theory at least, to minimize the combined effect of zoning and racial residential patterns. In answer to a question whether a student could transfer for no stated reason, the Superintendent of Schools, Dr. Javis, testified:

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That is right; if there is room. It always happens due to mobility that some of our schools aren't full. All of our schools are surveyed twice a year to find out where the room is. There is then published a survey showing which schools are open, and which schools can accept a limited number, and which schools are closed. This changes from year to year. We wouldn't inquire into his reasons if we had room. We just handle them on the basis of priority of application.

Philadelphia's Board of Public Education reports that: 36

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it is [our] policy to have each child, unless his physical, mental, or other educational needs require assignment to specially organized

classes and school, attend the school serving his community. However, as has always been the practice, a parent may request the assignment of his child, regardless of what his race or creed may be, to any public school having appropriate grades of courses, provided that that school after enrolling the children of its community has adequate accommodations for pupils from outside. In Philadelphia only 5,000 pupils, approximately, out of 245,000 are attending schools outside their home boundaries and the majority of these are Negro children.

It has been stated that the maintenance of open boundaries for some schools and long-standing rule of optional enrollment at such schools interfere with the integration process. In a limited number of cases this may be true. In all probability, the converse is true in most cases and to a much greater degree.

Suit was filed against the Philadelphia School Board on June 7, 1961, by parents of Negro children charging, among other things, discrimination resulting from the transfer policy."

New York City took the lead in using the transfer technique to achieve a better racial distribution of pupils and a better utilization of facilities. This was done effective in September 1960 by authorizing transfers from 21 junior or senior high schools with a heavy concentration of Negro and Puerto Rican students to 28 other schools with a predominantly white enrollment filled to less than 90 percent of capacity. Although about 3,000 students were eligible to change, only 393 did so at the opening of the school year. Late announcement of the program and transportation difficulties may account for the small number taking advantage of the opportunity.3

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The policy was extended effective in September 1961 to the second, third, and fourth grades of 93 predominantly Negro and Puerto Rican schools from which students may apply for some 15,000 empty places in 124 schools with predominantly white enrollments. The city will provide transportation for all children selecting a school more than a mile from home. It is reported that some 3,000 elementary school children have been granted transfers.* An additional 2,500 pupils who will enter junior high in the fall have also had transfers approved.*

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The New York City pattern of overcrowded schools in areas inhabited by minority groups-and unfilled classrooms in outlying, predominantly white communities—is not unique. Indeed housing and related studies indicate that this is quite common in our cities. Where it exists the transfer of pupils from crowded to under-utilized schools at a distance is more effective than rezoning as a method of equalizing school loads. But when the transfer device is used to desegregate, as well as to relieve overcrowding, it raises constitutional problems. The announced purpose of the New York City plan, for example, was to give "parents of pupils

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