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forbidden? Second, what are the attributes of nondiscriminatory operation of a public school system? Third, how can nondiscriminatory operation of a public school system be achieved under the rules enumerated by the Court?
Unlawful discrimination in public schools
The School Segregation Cases establish the proposition that enforced assignment of pupils to public schools on the basis of race is constitutionally forbidden. But what of segregation that results not from the operation of a dual school system, but from a gerrymander of school attendance zones or from the selection of a site for a new school for the purpose of causing or perpetuating segregation of the races?
The discrimination presented in the School Segregation Cases related to Negroes. The rule applies equally to other minority groups such as Puerto Ricans, Mexican-Americans, and American Indians. What classification of pupils other than by minority-group status would be considered arbitrary and, therefore, discriminatory? Is classification by the amount of education or the social or economic position of a child's parents permissible? To what extent can any factors that do not relate directly to education or the educational process be the basis for classifying schools or pupils without offending constitutional principles?
All of the school boards before the Supreme Court in the School Segregation Cases operated public school systems supported entirely with public funds. But must a school be entirely owned and operated by a public agency and supported with public funds to be subject to the constitutional rule of nondiscrimination? In the Girard College case sole control of the school by public officials without ownership or financial support brought the school under the 14th amendment. The Supreme Court said in the Little Rock case that the rule "forbids States to use their governmental powers to bar children on racial grounds from attending schools where there is State participation through any arrangement, management, funds, or property.” But what do these words mean in application?
Complete control alone was sufficient to bring the school within the scope of the rule in the Girard College case. How much less than complete control or what combination of some control and some financial support would bring the same results? If a State or its agency grants a school a license to operate, or approves a private school as satisfying compulsory school attendance laws, is there sufficient State participation to bring the school within the constitutional ban? If there is no public control, is a privately owned and operated school subject to the constitutional ban solely by reason of indirect public support?—by tuition
grants, for example? If so, what proportion of its funds must come from public sources?
A related problem is the abandonment of public schools to avoid the necessity of compliance with a court order to desegregate. In the School Segregation Cases the Supreme Court said “. . . education is perhaps the most important function of State and local governments. . . . Such an opportunity (for an education), where the State has undertaken to provide it, is a right which must be made available to all on equal terms.” $3 Does this mean that the State has no duty to provide free public education or that having assumed that duty may abandon it at will?
In the absence of action that might be construed to be an evasive scheme to perpetuate segregation with State support, can the operation of public schools be abandoned for the purpose of avoiding compliance with a court order? Can an individual school district close its public schools without denying equal protection if other public schools in the State remain open?
Attributes of a nondiscriminatory system
The Supreme Court has held a dual school system based upon race unconstitutional but it has been less specific as to what satisfies constitutional requirements. Does full compliance require the elimination of a dual, and the achievement of a single, unified public school system? Several of the Court's statements suggest that it had a unified system in mind: For instance, the fact that it specified, among the factors that might be taken into consideration in determining how much time could be allowed for the achievement of full compliance, the revision of school districts and attendance zones and the need of revision of local laws and regulations.*
The Shuttlesworth case indicates that assignment of pupils individually by nonracial criteria is an acceptable manner of achieving desegregation. What other methods—in addition to rezoning which the Court has suggested—would satisfy constitutional requirements?
Achievement of full compliance
Weighing the public interest against the private, the Court has not insisted upon immediate, universal desegregation. After a prompt and reasonable start has been made, full compliance is to be achieved with all deliberate speed. The first and most obvious question is whether delayed compliance is limited to the factual situation presented in the School Segregation Cases where all tangible factors were equal or being equalized. If segregated school facilities are patently unequal must the
plaintiffs be admitted to the superior school forthwith, or does the rule of all deliberate speed still apply?
Another question relates to the rights, if any, of the individual plaintiffs. In the second Brown decision the Supreme Court said that the plaintiffs' realization of their constitutional right of admission to public schools on a nondiscriminatory basis may be deferred. But can they be forever barred from qualifying for nondiscriminatory admission by the terms of a desegregation plan? For example, a grade-a-year plan beginning at grade 1 gives no relief to individuals who are in grade 2 and above when the plan is put into effect. Since suit cannot be brought on behalf of a child until he is eligible for admission, all plaintiffs will be in grade 2 at least when litigation is concluded and such a plan put
a into effect.
The Supreme Court said that school authorities have a duty to initiate desegregation and bring about a constitutional operation of their school systems. Did this duty arise immediately after the second Brown decision, June 1, 1955, or does it arise only when a Negro pupil first asserts his constitutional rights? This question has considerable pertinence because 6 years have elapsed since the second Brown decision and many school boards have not yet taken any action to desegregate. Are they to be allowed as much time now as boards which started working out plans in 1955?
Lower courts were admonished in the second Brown decision to judge whether or not the action of school boards constitutes “good faith implementation of the governing constitutional principles.” What is good faith? Is it what the school board believes is best for the plaintiff, other pupils, or the community as a whole? Or does "good faith” relate to the result to be achieved, i.e., full compliance?
The Supreme Court enumerated six factors that courts may consider in fixing the time limits of the transitional period. Are these six factors exclusive of all others?
During the transitional period fixed by a court as reasonable under all the circumstances, to what extent, if any, may race be considered? Does the extent to which race may be considered during a transition period approved by a court depend at all upon the type of desegregation plan adopted? For example, is the extent to which race may be considered the same in a grade-a-year plan based on rezoning and in a grade-a-year plan using individual pupil placement?
It has been said that the Alabama Pupil Placement law (although not the individual criteria) was approved by the Supreme Court in the Shuttlesworth case as not unconstitutional in toto. What action on the part of a school board is required to implement such a law? May the board continue to assign all pupils on a racial basis and merely consider individual requests for transfer to another school?
If initial assignments by race subject only to the right to transfer are not constitutionally acceptable, how can a gradual implementation of a pupil placement plan be achieved? Application of the law each year to all new pupils (kindergarteners or first graders, new residents, graduates from elementary school or junior high) is one possibility. A gradea-year is another. Do either or both meet the requirements of deliberate speed? If such a transition period is approved, to what extent, if any, may race be a basis of pupil assignment during the transition?
In following chapters answers to these questions as they now appear will be discussed. In chapter 3, those that arise in the desegregation of a school system will be analyzed in the light of Supreme Court pronouncements and lower court decisions. These are, of course, suits brought in Southern States seeking desegregation or challenging the method of carrying it out. Questions relating to indirect State support of private segregated schools and the closing of public schools will be covered in chapter 6. Some of the questions posed are more applicable at the present time in the North and the West than in the South. These will be taken up in chapter 7.
3. The Law of Desegregation
Paraphrasing the Supreme Court's rules governing school desegregation is much simpler than applying them. Seven years of litigation has not brought uniformity among lower court decisions as to what does, and what does not, satisfy constitutional requirements. Part of the difficulty may arise from the fact that some lower courts have not recognized that each desegregation plan raises three interrelated questions. First, does it provide for a prompt and reasonable start in good faith toward full compliance? Second, if carried out completely will it result in a racially nondiscriminatory operation of the school system? Third, does the time schedule for complete execution of the plan meet the test of all deliberate speed? Only affirmative answers to all three questions appear to meet the rules laid down by the Supreme Court. This chapter sets forth the answers to these questions found in lower court decisions. They will be analyzed in the light of the pronouncements of the Supreme Court in an attempt to delineate the law of desegregation.
PROMPT AND REASONABLE START
In the first years after the School Segregation Cases in 1954, lower courts took a tolerant view of what constituted "a prompt and reasonable start" toward good-faith compliance. The formation of a citizens' committee to study the problems of desegregation, or study and planning by a school board, was held to be such a start.1
Now it is clear that such gestures are not enough. In the Little Rock case, decided in the fall of 1958, the Supreme Court emphasized that State authorities, including local school boards, are “duty bound to devote every effort toward initiating desegregation and bringing about the elimination of racial discrimination in the public school system.”