At the hearing at which the court refused to interfere with the holding of the election on school closing, the court asked the parties and the United States as amicus to file briefs on the following questions: 57

A. . . .

(1) Is it implicit in today's concept of due process that a child has a right to public school education, even though there is no provision in the State constitution requiring the State to maintain a public school system? (2) In the fact situation this case presents, considering especially that the State now maintains and has for many years maintained a public school system, does Act 2 violate due process if its effect is to deprive the children in St. Helena of a public school education?

The court knew of the State law providing grants-in-aid for education, but questioned whether grants-in-aid would be an adequate constitutional substitute for public school education, particularly where such aid would result in segregated private schools.

In an unprecedented move the court invited the attorneys general of each State of the Union to express their views on the constitutionality of a State's abandonment of public schools. The questions put by the court were:58

1. Would the abandonment by a State of its public school system deprive children of rights guaranteed by the due process or equal protection clauses of the 14th amendment?

2. Would the answer be the same if the abandonment were on a local option basis after a vote of the electorate authorizing county school authorities to close public schools?

In its brief the United States contended that the Louisiana law in question as applied to St. Helena Parish constituted an evasive and obstructive scheme to prevent the execution of the order of the court. As proof of its contention the United States cited the history of the 1960-61 Louisiana legislation, particularly those providing tuition grants and authorizing private educational cooperative schools. The Attorney General urged the court to "intervene now to enjoin . . . the claimed abandonment of the public school system," rather than permit the closing of the public schools before the court was satisfied that the alternative would be constitutionally acceptable.50

In effect, the United States answered in the affirmative the Court's question whether or not the abandonment of public education by a State is a deprivation of due process of law. It suggested, however, that the court did not have to decide that issue a priori; that by enjoining the enforcement of the statute the court could shift the burden to the State of explaining the reasonableness of the proposed abandonment of

public schools and of justifying it under the constitutional principles. At the date of writing no decision has been handed down.

THE PRINCE EDWARD CASE

The novelty of the Attorney General's action in the Prince Edward County case was his request to intervene not as amicus curiae but as a plaintiff. As indicated in Chapters 5 and 6 above, all of the public schools of Prince Edward County were closed during the school years 1959-61 to avoid compliance with a Federal court order to admit Negroes on a nondiscriminatory basis. In February 1961 the Negro plaintiffs filed a supplemental complaint seeking to reopen the schools. Then, in April the Attorney General asked for permission to intervene with a complaint and to add the State and others, as parties defendant “in order to prevent a circumvention and nullification of the prior orders of this Court and to safeguard the due administration of justice and the integrity of the judicial processes of the United States." 60 He contended that "obstruction to and circumvention of school desegregation decrees violate the interests of the United States in the due administration of justice as well as the interest of the original plaintiffs in the desegregation suit.” 61 The Faubus and the New Orleans cases were cited as

precedents.62

The essential question in the Prince Edward case was the effectiveness of the court order directing school desegregation; unlike the Louisiana cases, however, there was no threat of interposition nor of direct interference with Federal officials in the performance of their duties.

The United States contended that under Rule 24(a) (2) of the Federal Rules of Civil Procedure its intervention was a matter of right as in any case "when the representation of the applicant's interest by existing parties is or may be inadequate and the applicant is or may be bound by a judgment in the action." 63 Distinguishing its position from that of the other plaintiffs, the United States argued that the purpose of its intervention was to preserve its judicial process against impairment by obstruction or circumvention, and to protect its sovereign interest in the due administration of justice-whereas the other plaintiffs were seeking to secure their individual constitutional rights.

The United States urged its absolute statutory right to, ". . . conduct and argue suits and appeals in the Supreme Court and suits in the Court of Claims in which the United States is interested." 64 To demonstrate its interest, the United States stressed that: 65

Appropriate action to vindicate the authority of the court in its implementation of constitutional guarantees is... "by the Constitution entrusted to the care of the Nation," to be taken by the President and his subordinate officials, including his chief law enforcement officer, the Attorney General. And it is clear that this Nation owes to all citizens the duty of securing to them their common rights to be allowed the benefit of Federal judicial decrees promulgated in implementation of their constitutional rights without unlawful obstruction or circumvention by State action.

The Government's complaint asserted that the closing of Prince Edward's schools was a denial of equal protection and circumvention of the court order on three grounds:

66

(1) Prince Edward County schools were closed to avoid operating them in compliance with the desegregation decree;

(2) public schools are being maintained elsewhere in the State; and

(3) private segregated schools offering education to Prince Edward County children are receiving State support in various forms.

The Government asked for injunctive relief on the ground that the school closing involved a circumvention of a court order and a denial of equal protection either on a racial, or a geographic basis. The petition prayed for an order enjoining the county school board and other local and State authorities from failing to maintain in Prince Edward County a system of free public schools; from paying tuition grants to students attending the Prince Edward School Foundation, a private school for white children; from crediting taxpayers for contributions to the private foundation so long as the public schools were closed; from approving or paying any funds of the State for the maintenance or operation of public schools anywhere in Virginia so long as the public schools of Prince Edward County were closed; and finally, from interfering with, obstructing, or circumventing the orders of the court requiring the operation of public schools of Prince Edward County on a nondiscriminatory basis.

On June 14 the Federal district court denied the Government's motion holding that it had no right to intervene as a party plaintiff at this stage of the proceedings: **

67

In Virginia, this complex problem has been and is being solved in a lawful and proper manner through the courts. There has been no defiance of this court's orders by either the State of Virginia or the County of Prince Edward. . . . The United States has no right to intervene as a party plaintiff in this case on that ground until

this court has first determined that its orders are in fact being violated or circumvented.

The court also said that Congress had refused in the past to authorize the Attorney General to initiate school desegregation cases, hence granting such permission would be "contrary to the intent of Congress.

9 68

THE NEW ROCHELLE CASE

The New Rochelle case 69 falls in the established pattern of amicus participation by the United States on court invitation. Participation in this case, however, was to assist the court in an area previously handled by the judiciary and local school boards the formulation of a school desegregation plan.

Negro plaintiffs had filed the suit to enjoin the building of a new school on the site of the 93 percent Negro Lincoln school in New Rochelle, and for the desegregation of the present Lincoln school.7o (The case is discussed in detail in Chapter 7.)

The district court found that the proposed new school was part of an established school board program to maintain racial segregation.”1 It ordered the board to present a desegregation plan and, finding the submitted plan unsatisfactory, asked for the advice of the Attorney General as amicus curiae. In its "notice re intervention of amicus curiae" the court stated:"

72

In the light of the interest which the Department of Justice has expressed in the implementation of Federal court decrees requiring desegregation, and to assure that the processes of this court will be fully respected and complied with, the court requests the Department of Justice to file a brief as amicus curiae.

The court is desirous of expert assistance with respect to the formulation of the final decree, and specifically in determining whether the plan submitted by the majority members . . . would bring compliance with the principles of the Fourteenth Amendment to the Constitution.

The entry of the United States into the case apparently was not opposed by the school board.

The United States submitted a brief in which it disapproved the plan proposed by the majority of the school board, advised against a stay of the execution of the desegregation order and suggested "guidelines" for

the formulation of a desegregation plan, adding: 73 "The Government as amicus curiae does not believe that it should formulate and propose a precise plan by which the desegregation of Lincoln School in New Rochelle is to be effectuated..

On May 31, 1961 the court issued its order refusing a stay and, adopted a desegregation plan closely following the "guidelines" suggested in the amicus brief." The ruling was upheld on appeal on August 2, 1961 in a 2 to 1 decision.75 In the New Rochelle case there was no threat of obstruction to the judicial process, nor was there any State legislation designed to thwart a Federal court order, as in the established amicus precedents. Therefore the court's invitation to the United States to intervene as amicus to find a solution for a local school problem marks a new phase in the history of school litigation.

SUMMARY

The role of the Attorney General in school desegregation cases has several facets. In the Brown cases he was in a familiar role as amicusan adviser on the law. In the Hoxie and Kasper cases he was both an adviser on the law and a defender of those performing a Federal duty. Although present at the request of the court as amicus in the Clinton cases, the United States Attorney actively participated in criminal contempt proceedings to prevent violent obstruction of a Federal court order. Indeed one of the cases was brought in the name of the United States.

In the Little Rock cases the United States appeared for the first time as a plaintiff in desegregation litigation, but did so by direction of the court. Although contested this was approved by the court of appeals. Again obstruction of court orders was the issue.

The Louisiana litigation brought further expansion of the role of the Attorney General. In the New Orleans case he was permitted to bring an action in the name of the United States to challenge the constitutionality of the Louisiana Interposition Act—a direct affront to the authority of the United States. The Attorney General has continued actively in this litigation advising the court on constitutional issues. In the St. Helena case the Attorney General is also taking an active role, but in this case, along more traditional lines, advising the court on the law.

In the Prince Edward case the district court refused to permit the United States to enter as a plaintiff. It distinguished the Virginia from the Louisiana situation, on the ground that here intervention was premature since there was no obstruction of the judicial process. The court