also found support in Congress' refusal to grant the Attorney General authority to initiate desegregation suits.

The New Rochelle case set a precedent in that the Government appeared as amicus not to protect the judicial process, prevent obstruction of court orders, preserve the sovereignty of the United States, or advise the court on constitutional issues but to advise as to a desegregation plan submitted by the defendant school board. The appearance of the United States in this role upon the invitation of the court does not appear to have been opposed by the defendant.

11. The Colleges

In January 1961 the Commission made its second report to the President and Congress in the field of education: Equal Protection of the Laws in Public Higher Education, 1960. This traced the development of separate public colleges for Negroes in the latter half of the 19th century, the role of the Federal Government in the establishment and financial support of such institutions, and certain related Federal policies as they affect equal protection of the laws.

Three proposals were made. The first recommended that Federal funds be granted only to public institutions which do not discriminate on grounds of race, color, religion, or national origin. No executive or legislative action in this regard has been taken.

The second recommendation dealt with the enforcement of constitutional rights. The Commission proposed that Congress consider authorizing the use of three-judge courts in cases presenting substantial issues of fact as to denial of equal protection in public higher education. There has been no legislation on this matter. In the University of Georgia case, discussed hereafter, the only relevant case decided since the publication of the Commission's report, suit was filed in September 1960 and the court denied a preliminary injunction that would have allowed the plaintiffs to attend the university immediately. Final decision, however, was quickly reached, and the plaintiffs were admitted to the university in January 1961. The early admission of the plaintiffs was due in large measure to a change in State policy in the face of the Federal court's action (and in some degree to swift action by the United States Court of Appeals for the Fifth Circuit in vacating a stay granted by the district court). If a three-judge court had been available in this case, along the lines of the Commission's recommendation, such a court might well have been more willing than the single judge to issue a preliminary injunction in September, with the result of even earlier admission of the plaintiffs. A new suit in Mississippi should cast further light on the potential usefulness of the Commis

sion's recommendation.

The third recommendation pointed out the need for action to alleviate academic handicaps resulting from inferior educational opportunities.

The Commission recommended Federal aid to the States for programs designed to assist public school teachers and students of native talent who are handicapped professionally or scholastically as a result of inferior educational opportunity or training. Chapter 8 of the present report describes some programs that serve this purpose and indicates a great need for them in all parts of the Nation. Although the first session of the 87th Congress has had educational bills under consideration, no measure of the type recommended by the Commission has been introduced. The President's messages and recommendations to the Congress concerning Federal aid to education likewise ignore the Commission's recommendation.

UNIVERSITY OF GEORGIA

In September 1960, two Negroes, Charlayne A. Hunter and Hamilton E. Holmes, filed suit in a Federal district court to enjoin the University of Georgia from refusing on racial grounds to admit them. They also sought damages. At the time the action was brought only two other Negroes had ever applied for admission to the university. One of the former applicants, Horace Ward, who had applied in 1950 for admission to the law school, was one of the attorneys for the successful plaintiffs.3

On September 25, 1960, a Federal court denied the request for a preliminary injunction on the ground that the plaintiffs had not exhausted their administrative remedies. The Board of Regents had not yet acted upon their appeal. But the court refused to dismiss the complaint as requested by the university.

Thereafter the Board of Regents denied both applications for admission. Mr. Holmes was rejected on the ground that "from a review of your records and on the basis of your personal interview, we are of the opinion that you do not qualify as a suitable applicant ."; Miss Hunter, "due to limited facilities." 5 The board assured both applicants that they could "renew and pursue their applications without prejudice."

After a full hearing, which lasted 42 days, the Federal district court found that the university's grounds for denying the applications were without merit, and permanently enjoined the university officials: "

7

From refusing to consider the applications of the plaintiffs and other Negro residents of Georgia for admission to the University of Georgia upon the same terms and conditions applicable to white

applicants seeking admission to said university; and from failing and refusing to act expeditiously upon applications received from Negro residents of Georgia; and from refusing to approve the applications of qualified Negro residents of Georgia for admission to said university solely because of the race and color of the Negro applicants; and from subjecting Negro applicants to requirements, prerequisites, interviews, delays, and tests not required of white applicants for admission; and from making the attendance of Negroes at said university subject to terms and conditions not applicable to white persons; and from failing and refusing to advise Negro applicants promptly and fully regarding their applications, admission requirements and status as is done by the defendant and his associates in the case of white applicants; and from continuing to pursue the policy, practice, custom, and usage of limiting admission to said university to white persons.

The court denied the plaintiffs' claim for damages. It noted that under the terms of the Georgia Appropriation Act the university would lose State aid upon the admission of the plaintiffs; granted a stay of its order for immediate admission; and observed that: 10

[T]his court is not allowing this stay because of the terms of the Appropriations Act or because of any confusion or uncertainty that might result from the terms of that act. I am allowing this stay solely in order that the defendant in this case might exercise his legal right of appeal in order to test the correctness or incorrectness of the decree heretofore entered by this court, and in order that he might do so before the decree has to be carried out.

The United States Court of Appeals for the Fifth Circuit swiftly overturned the district court's stay thus reinstating the order for admission."1 On the night following the district court's ruling, three student demonstrations opposing plaintiffs' admission were held on the university campus.12 Meanwhile the General Assembly of Georgia enacted four measures (proposed by the Governor) to permit operation of public schools and colleges even if desegregated. At the same time the legislature adopted other measures designed to keep control of school administration out of the hands of the Federal judiciary; and to hold desegregation to a minimum.13

On January 11, 1961, Miss Hunter and Mr. Holmes attended their first classes at the university. After a few days of disorder and demonstrations they were suspended and removed from the campus. University officials said that the presence of the two Negro students on campus was a threat to their own safety and that of other students. The court ordered readmission in spite of the demonstrations. It quoted

The

the language of the Supreme Court in the Little Rock case: ". constitutional rights of [plaintiffs] are not to be sacrificed or yielded to ... violence and disorder.' The students returned to classes at the university on January 16 without further difficulty.

15

Miss Hunter lived in a campus dormitory; Mr. Holmes roomed in a private home. At first both voluntarily refrained from using dining, library, and other campus facilities. However, on March 9, 1961, Miss Hunter obtained a court ruling that the dining room, swimming pool, and all other university facilities had to be made available to all students on an equal basis.16 No further disorder or student demonstration has been reported. On May 4, 1961, the university announced that the application of an Atlanta Negro teacher for admission to the graduate school had been approved. She is the first Negro student to be accepted for graduate study.17

OTHER PUBLIC COLLEGES

On May 11, 1961, the Georgia Institute of Technology accepted the applications of three Negro students for admission in the fall of 1961. They are the first of their race to be admitted to the school in its 76-year history.18 The voluntary lifting of the racial barriers at Georgia Tech came 4 months after the two Negroes were admitted to the University of Georgia.19

Georgia Tech student leaders and prominent alumni supported the action as in keeping with the United States Supreme Court's decision in the School Segregation Cases.20 The student body president stated that the students at the school were "mature and responsible" enough to understand and abide by sound decisions.21 Governor Vandiver in commenting on the action of Georgia Tech officials said at a news conference that the problem had been thoroughly explored by school officials and the State Board of Regents and found to be in Tech's best interest.22 In Charlotte, N.C., the trustees of Charlotte and Carver Junior Colleges-one formerly for whites, the other for Negroes-announced in February 1961 that after completion of their permanent buildings, they would both be opened to qualified students regardless of race or color.23 Two Negro taxpayers brought suit in a State court to halt construction of segregated buildings for Carver College on the ground that it "will in fact prolong the existence of segregated education." 24 A State superior court held for the defendants on the ground that the complaint did not state a cause of action 25 in light of the announcement that both colleges would be open to all qualified students.