in schools with a heavy concentration of minority groups the opportunity to transfer their children to schools with unused space and to an education situation where reasonably varied ethnic distribution exists." 42 Can government validly encourage transfers on racial grounds to achieve desegregation, even though presumably it may not do so to achieve segregation? The courts have not yet had to face this question.

In 1960-61 school officials in Westburg, Long Island, New York, transported white pupils by bus to a newly constructed school located in a predominantly Negro area in order to prevent the school from becoming an all Negro one. As a result the racial distribution at the school was about half Negro and half white.42a

Other cities have transported children from overcrowded schools to schools having space for them-but for a less felicitious purpose. At its Detroit hearings the Commission was told that prior to November 1960, students from the predominantly Negro schools in that city's Central District were transported to predominantly Negro schools in an outlying area. Nearer schools, enrolling primarily middle-class white children, were by-passed. Since November 1960 children from the Center District have been transported by grades to empty classrooms in three predominantly white schools. Whether or not they were segregated in a receiving school depended upon its principal.“

43

Baltimore is another city that has resorted to busing children from one school to another to relieve overcrowding. The Commission had been told it was the policy of the school authorities, when bus transfer of a group of children was required, to select a receiving school with a racial composition similar to that of the sending school. At the Commission's Williamsburg conference the superintendent of the Baltimore Schools said, ". . . to a large degree that would be true, but not completely so in every situation.” 45 When pressed to say whether it would be true even if there were a nearer school, he replied: ‘. . . the nearest school in all the situations that we have at the present time would be overcrowded to the point that it couldn't house the additional children that would be transported."

99 47

46

A policy of maintaining the racial composition of schools through transfer policy (as in Detroit before November 1960) may in fact be a positive policy of maintaining the status quo. If the status quo is racial segregation, even though merely de facto, a program to preserve it would seem to result in unconstitutional de jure segregation.

Berkeley, Calif., has an unusual zoning device that tends to avoid racial imbalance resulting from boundaries and minority concentrations. It intersperses optional attendance areas among fixed zones. This "permissive zoning" allows the residents of an optional area to select any one of two or more schools. In one situation, for example, the choice is between two schools having a less than 1 percent, and one having approximately 25 percent, Negro enrollment.48 In another, the

choice is between two schools having a preponderantly, and one having a slightly less than 15 percent," Negro enrollment. Under this plan school authorities are relatively immune from charges of segregation by zoning.

SITE SELECTION

School boards usually are authorized to select sites for new schools. This, like the power to fix attendance zones, if misused to promote racial segregation, would seem to constitute State action that is forbidden by the equal protection clause. Apparently the New Rochelle case (discussed above with regard to the gerrymander) is the only one in which a charge of abuse of authority was sustained on this ground.

In Sealy v. Department of Public Instruction of Pennsylvania 50 in 1957 an effort to prove discrimination by site selection failed. The facts showed that the school district in question was composed of two noncontiguous areas. The upper section had a Negro public school population of less than 5 percent, the lower of more than 95 percent. Even after allowing for the large number of children (particularly whites living in the upper section) who attended a Catholic parochial school, there were about 17 percent more public school students living in the upper, than in the lower section. A new school was to be built to replace an old one located in the lower section. It was to serve all children living in the district. The trial court found no evidence that the school board had been motivated by any racial consideration in its decision to locate the school in the upper section. Since all junior high students in the district, both Negro and white, would be free to attend the new school, no real question of creating a segregated school by site selection was involved in the case.

In affirming the lower court decision, the United States Court of Appeals for the Third Circuit said: 51

The location of schools assuredly is one for State school authorities and local school boards; for State, not national courts, unless there be a deprivation of rights guaranteed by the 14th amendment. The plaintiffs have failed to prove their case.

In the Pontiac case, referred to above, discrimination by site selection was also charged. The facts showed that two sites had been considered. One was located in a densely populated Negro neighborhood, the other in a rather remote, but apparently less racially congested area. The

latter was rejected because it presented safety hazards for little children. The court found no abuse of discretion, saying:

52

[A school board] may consider such factors in selecting sites that it considers relevant and reasonable and, in the absence of a showing that the standards for selection are not relevant and reasonable and that in reality they were adopted as a sham or subterfuge to foster segregation, or for any other illegal purpose, their use is within the administrative discretion of the school board. The fact that in a given area a school is populated almost exclusively by the children of a given race is not of itself evidence of discrimination. The choice of a school site based on density of population and geographical consideration, such as distance, accessibility, ease of transportation, and other safety considerations, is a permissible exercise of administrative discretion.

54

The New Rochelle case 5 discussed above, started with a school board decision to build a new school on the site of the Lincoln School, which the court found had been deliberately created and maintained as a Negro school. Instead of issuing an injunction, the court ordered the board to present a desegregation plan. The plan presented by a majority of the board was based upon existing school zones, but included strictly circumscribed, permissive-transfer privileges. No transfer would be allowed unless approved by the pupil's classroom teacher, his school principal, and the superintendent of schools; nor would one be valid for more than a year. (Transferees could be displaced after 1 year by children living in the zone of the receiving school.) The right to transfer was further limited by a board ruling as to maximum class size. The minority members of the board submitted a plan which the court refused to bar from consideration.55 It called for immediate transfer of upper-grade pupils and the abandonment of Lincoln School in 1964.56

Upon the invitation of the court," the United States submitted an amicus curiae brief in which it criticized the majority plan, referred to the minority plan only indirectly, and ignored the question of segregation by site selection. Although acknowledging that, under the second Brown decision the suitability of a plan is to be determined by local school conditions, the United States suggested that the free transfer programs of the border cities of Washington, D.C., Baltimore, Oklahoma City, and Louisville should be the criterion for New Rochelle.58 Then this crucial observation: 59

It may well be that, upon experience, it will appear that placing the burden of applying for transfers upon the Negro children is not the most effective way of eliminating the deplorable conditions which presently exist. It seems quite possible that

thorough elimination of segregation will require revision of school district boundaries or plans for completely free transfers. This, in turn, may necessitate the construction of additional schools or the enlargement of facilities at present schools, as is proposed by the plan submitted by the dissenting minority of the Board of Education. But a desegregation plan formulated along the lines suggested above would at the very least, be an acceptable, interim solution and would constitute a sound, constructive step toward the realization of the goal of constitutional equality of treatment. Since the Court would retain jurisdiction, it may ultimately fashion a broader remedy.

The court adopted the amicus recommendation. It ordered the board to distribute promptly applications for transfer to parents of all children expected to enroll in the Lincoln School the following fall. The application forms were to: (1) show the expected vacancies in each grade of all other elementary schools; (2) provide space to list at least four schools, in preferential order, to which transfer was requested; (3) give notice that transportation would be at parents' expense; and (4) indicate the final date for filing applications. The order permits the board when acting upon a transfer application to consider class size of the receiving school (but it expressly prohibits departures from existing maximum limitations), and also prohibits consideration of academic achievement or emotional adjustment. The court also ordered the board to assign transferees to the same grades they would have been eligible to attend at Lincoln, and to permit them to stay in the receiving school until completion of the elementary grades, unless they moved to another school zone.

Thus, it appears that the school board is now free to proceed with its announced plan to build a new school on the site of Lincoln. This, the Dodson Report found, "would further reinforce segregation of Negroes. It would leave two schools in the same neighborhood . . only partially used, and it would reinforce community fragmentation.'

99 60

The court's opinion makes it clear that in its view, the decision to build a new school on the old site was part of a series of deliberate actions by the board to make and keep Lincoln (old and new) segregated. The board had urged that the decision to rebuild Lincoln was a start in the right direction since this was the first step in its consultant's (Dobson) proposals for overcoming racial imbalance in the New Rochelle schools. One Dodson plan called for building a much larger school on the old site and closing a nearby school. The board instead had decided to build a smaller school on the site. The court disposed of the Board's contention that it was merely taking the first step in the Dodson proposals, saying:

61

But, the Board had indicated that it has no intention of implementing the remainder of these proposals, which Dr. Dodson stated must be considered as an integrated whole. Dr. Dodson testified at the trial that the Board's decision did violence to the spirit of his report. Thus, it is most difficult to conceive of the rebuilding of the Lincoln School as good faith compliance with an obligation to desegregate. In fact, this seems the one sure way to render certain continued segregation at Lincoln.

The Board's contention that it alone had legal authority to select locations for schools was summarily answered: 62

The existence of this authority, however, is not questioned by the plaintiffs. But this power, like any other, must be exercised in accordance with the demands of the Constitution.

In view of these statements the court's failure to enjoin the building of a small school on the Lincoln site is puzzling. The court-approved, free transfer plan appears to be at most a temporary stopgap that may prove to be entirely ineffectual when the new school is built.

The above decisions suggest the following general rules as to site selection vis-a-vis equal protection:

1. The discretion granted school boards to select school locations must be exercised in good faith in the light of such factors as are relevant and reasonable.

2. In the absence of a showing that the factors used by the board are not relevant and reasonable, or are a sham or subterfuge to foster segregation, the action of the board will not be disturbed.

3. The fact that the school by reason of its location may be attended solely by white pupils, or solely by Negro pupils, is not of itself proof of an abuse of discretion in site selection.

Because of the inherent possibilities of abuse, site selection may well become an important issue in the future.68

The foregoing discussion suggests that gerrymandering, transfer manipulation, and site selection when used by public officials to promote school segregation violate the equal protection clause of the 14th amendment. They do so, of course, regardless of the relative quality of the facilities provided for the separated races. Attention will now be directed to other situations that may constitute denials of equal protection-situations in which inequality arises from the inferiority of the school to which a pupil is assigned.