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As the Court put it in Bolling v. Sharpe, “... the equal protection clause of the 14th amendment prohibits the States from maintaining racially segregated public schools." 8

In Brewer v. Hoxie School District, the Court of Appeals for the Eighth Circuit recognized the legal duty of the school board to act even though it was not under court order to do so:

The principles enunciated by the Supreme Court in the School Segregation cases are binding upon plaintiffs in this case, as well as on all other school boards or school officials administering public education programs. For in practical effect, the rights and duties of not only the immediate parties to the cases before the Supreme Court were at issue but also the rights and duties of all others similarly situated.

A plan for a prompt and reasonable start apparently is no longer enough. The test of whether or not a plan is in “good faith” is action, not words. Furthermore the "good faith” demanded is objective, not subjective. Immediately after the Supreme Court's decision in the Little Rock case, a Federal district court instructed a school board as to the “good faith” required of it.®

. the Supreme Court did not intend that the "good faith" to be exercised by school authorities should be confined solely to what you honestly and sincerely may believe is for the best interest of the child, the children in the affected school, and the public in general. ... At no time has the Supreme Court used the words “good faith” as we would ordinarily interpret the same, and, you will observe, the granting of additional time presupposes that a prompt and reasonable start toward full compliance has been made.

In the Dollarway case (1960) a Federal district court had upheld a desegregation plan based on the Arkansas placement law and a general policy against transfer of pupils already enrolled in school. It said this plan would give at least some Negro first-graders a reasonable chance of being assigned to a white elementary school.” But the Eighth Circuit reversed the decision, saying:

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... after a lapse of 6 years, we think a board should be required to come forth with something more objectively indicative as a program of aim and action than a speculative possibility wrapped in dissuasive qualifications.

It appears that good faith now requires action; unimplemented plans no longer meet the requirement of a prompt and reasonable start.

FULL COMPLIANCE

Three basic types of plan for implementing desegregation have emerged: (1) free choice of school (all schools in the system are open to any eligible pupil without regard to race or residence); (2) rezoning of attendance areas for all schools, white and Negro (all pupils living within a delineated area are automatically assigned to the school therein); (3) individual pupil assignment (each pupil is judged by established criteria and assigned to the school found to be appropriate).

Free choice of school

Baltimore is the only city known to have adopted the free choice of school method as a means of abandoning segregated schools, but even Baltimore's plan includes elements of rezoning and pupil assignment. Only two limitations are placed on the pupil's free choice of school: First, where there are overcrowded schools, attendance is limited to residents of the neighborhood—a limitation removed as soon as the crowded condition is relieved; second, there are certain special-purpose schools with scholastic admission requirements. In the absence of gerrymander of attendance zones, or discriminatory administration of admission requirements for the special-purpose schools, neither of which is suggested to exist in Baltimore, these two variations on the free-choice-of-school plan, like the plan itself, seem constitutionally sound.

The Baltimore desegregation was initiated throughout the city in September 1954; its impact has been considerable. In October 1954, there were 53 schools attended by whites only, 61 attended by Negroes only, and 49 in which both white and Negro pupils were enrolled. In other words there were 114, or 69 percent, of all schools attended only by white or Negroes. Six years later there were 100 schools attended only by whites or Negroes and 93 biracial schools.o The percentage of all schools attended by members of one race had dropped to 52. Does the fact that this kind of racial segregation persists in over 50 percent of the schools after 6 years of desegregation make the free-choice-of-school plan constitutionally vulnerable? It would seem not. The persistence of segregation under any plan certainly may place the burden on the school authorities to prove that all of their administrative practices are in fact nondiscriminatory; but, as many courts have said," a free, private choice of segregation does not violate the Constitution. In Baltimore most pupils choose to attend the school in the neighborhood of their homes and, therefore, to a large extent the enrollment of the schools reflects residential patterns. Since there is no legal compulsion in their choice of schools, no constitutional question as to the desegregation plan

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scems to arise. The cost of public transportation may be a deterring factor in the choice of a school outside of the pupil's residential area, but no court has said that school authorities are obliged to provide transportation for out-of-zone pupils. When a school system offers free transportation, it must do so without regard to race, but race alone would not appear to entitle one to free transportation. Therefore, although there has been no legal test of the constitutionality of the Baltimore free-choice method of desegregation, it appears to be constitutionally valid.

Several school systems have attempted unsuccessfully to get court approval of desegregation plans offering a choice between racially segregated and biracial schools. Such attempts have relied on the proposition that segregation by choice is constitutionally acceptable. The first such plan was rejected by a Federal district court in Kelley v. Board of Education of Nashville," on the ground that a choice between a segregated and nonsegregated school was merely a preliminary step to the establishment of schools based on racial distinctions—white as well as Negro pupils would be barred from some schools on the basis of race alone. The doctrine of the School Segregation cases, the court held, applies to individual schools as well as school systems: .. discrimination is clearly not eliminated by maintaining and operating some schools in the system on a racially segregated basis and others with the discrimination removed.” 18 The plan could not meet the test of constitutionality because, when fully effective, racial discrimination would still exist.

Recently two similar plans have been rejected. A Federal district court in Ross v. Peterson 1 (the Houston case), rejected the Houston School Board's "salt and pepper” plan as “a palpable sham and subterfuge designed only to accomplish further evasion and delay.” 15 This plan called for the opening to i high school, i junior high school, and i elementary school (out of a total 173 schools) to voluntary enrollment by both whites and Negroes. The particular schools to be opened to biracial enrollment were to be selected by a study of the results of a referendum on the question of desegregating schools.

In Borders v. Rippy,16 a “salt and pepper” plan, presented by the Dallas School Board at the urging of the Federal district court, was approved, but struck down on appeal. Like the Houston plan, it provided for separating and grouping schools into white, Negro, and mixed. It also provided for canvassing parents and pupils to ascertain their preferences. The U.S. Court of Appeals for the Fifth Circuit observed that the “plan evidences a total misconception of the nature of the constitutional rights” 18 of the plaintiffs: 19

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Negro children have no constitutional right to the attendance of white children with them in the public schools. Their constitu

tional right to "the equal protection of the laws” is the right to stand equal before the laws of the State; that is, to be treated simply as individuals without regard to race or color.

The plan was rejected as one in which some segregation would be required by law. A variant of the free choice plan is choice within a limited geographic

After rejecting Houston's "salt and pepper” plan, the court ordered that a grade-a-year plan be put into effect under which 20—

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Each student entering the first grade (. . . as distinguished from the kindergarten) may, at his option, attend the formerly all-white, or the formerly all-Negro school within the geographic boundaries of which such student may reside,

To this limited free choice, the court added: 21

Nothing herein shall be construed to prevent the transfer of a student at his request, or pursuant to reasonable transfer rules promulgated by the school authorities, provided only that, in the latter case, the color or race of the student concerned shall not be a consideration.

After the desegregation of the 12th grade in September 1971, "any grade or class not heretofore specifically referred to” 22 (i.e., the kindergarten) will be desegregated in the same way.

The effect of the court order, of course, is entirely dependent upon the existence or absence of an overlap of white school zones and Negro school zones. About 25 percent of both the public schools and school population of Houston is Negro.2 Negro, as well as white, schools are scattered throughout the city which is zoned into attendance areas for segregated white and Negro elementary schools. The Negro zones are much larger because there are fewer Negro schools, so that the geographic area covered by a Negro zone may include two or more white zones. Thus, it appears that every Houston school child lives within the geographic boundary of both a white and a Negro school.

Under the terms of the court order, each first-grader was given the option of attending the white or the Negro school in his area. He also had the right to apply for transfer to another school, presumably one outside of his residential zone; or he could be transferred without request under the board's transfer rules so long as they were reasonable and did not include race.

On its face, the plan would seem to be one that would lead to full compliance at the end of the grade-a-year progression. However, the school board required Negro pupils enrolled in kindergarten to "transfer" to the first grade. Then it issued a transfer rule requiring

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children of the same family to attend the same school. Thus, firstgrade Negro pupils having older brothers and sisters in a Negro elementary school have been denied transfers. Here, then, is a case where a normally free choice plan was transformed, by administrative action, into a pupil placement plan of doubtful constitutionality.25

Rezoning

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Attendance zones constitute the time-honored method of apportioning children among schools, and without more are unquestionably valid because the two criteria for assignment-residence and capacity of the school-have no relation to race. A number of desegregation plans are based on the revision of the school attendance areas of all schools in the district without regard to race. However, all school districts which are known to have selected this method of desegregation have some provision for voluntary transfer of pupils to a school in another attendance zone upon request. Thus, a degree of personal choice is added to a purely geographic assignment. The provisions for transfer of students between zones are crucial. Three types prevail: free, discretionary, and restricted. Free transfer provisions give the pupil the right to request and receive a transfer to any other school of the appropriate grade level, limited only by the capacity of the school selected. Discretionary transfers depend upon various stipulated criteria which the school board must consider in granting or withholding school-change requests. Restricted transfers are those limited by nondiscretionary standards which vary with each plan.

The free transfer approach (used, for example, in Louisville ) 26 seems constitutionally sound. The discretionary transfer presents the same constitutional questions raised by pupil placement; these are considered below in conjunction with that subject. The restricted transfer is a limitation on the effect of rezoning and will be considered here.

The restricted transfer is exemplified by the transfer right included in the Nashville plan approved by the U.S. Court of Appeals for the Sixth Circuit. Under this plan a pupil is entitled to receive a transfer from the school in which the rezoning placed him, if he finds himself assigned to a school that previously served the other race, or to a school or class in which members of the other race are in the majority.28 In considering the constitutionality of this provision, the court of appeals seems to have thought of it only as a provision to permit Negro children to retreat to segregation, and not also as one which, by permitting white pupils to transfer out of schools formerly serving only Negroes or mostly Negroes, re-creates segregation from which under the rule the Negro pupil assigned there cannot escape. The court said: 29

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There is no evidence before us that the transfer plan is an evasive scheme for segregation. If the child is free to attend an

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