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integrated school, and his parents voluntarily choose a school where only one race attends, he is not being deprived of his constitutional rights. It is conceivable that the parent may have made the choice from a variety of reasons concern that his child might otherwise not be treated in a kindly way; personal fear of some kind of economic reprisal; or a feeling that the child's life will be more harmonious with members of his own race. In common justice, the choice should be a free choice, uninfluenced by fear of injury, physical or economic, or by anxieties on the part of a child or his parents. The choice, provided in the plan of the Board, is, in law, a free and voluntary choice.

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The court here apparently was considering only one-half of the transfer provision—that allowing the Negro pupil assigned to a white school to elect to return to the Negro school. But in practice it is the white pupils' exercise of transfer rights that is significant. In 4 years of operation in Nashville, all white children assigned to formerly Negro schools or schools predominantly Negro in enrollment have requested and received transfers, leaving the enrollment 100 percent Negro.30 The Negro children originally assigned there must remain, as the rule does not permit them to transfer. As to these children the operation of the restricted transfer rule creates compulsory segregation. The original assignment is not based on race, but the transfer right is. Moreover, the transfer provision does not appear to be a transition measure because no date for its termination is set and the court did not so classify it. Thus the Nashville plan, fully implemented, will preserve in part the existing patterns of segregation, for under it Negroes living in the attendance areas of formerly Negro schools will still be attending, by no choice of their own, all-Negro schools. Plans incorporating the Nashville transfer provision in a similar context have been approved by Federal district courts for school systems in Knoxville, 31 Davidson County, 32 and Chattanooga, Tenn., and in Warren County, Va."

In the Dallas case 35 the U.S. Court of Appeals for the Fifth Circuit approved a grade-a-year plan, but deleted similar transfer provisions “because .. (they] recognize race as an absolute ground for the transfer of students, and ... [in] application might tend to perpetuate racial discrimination."

The court noted that although the Supreme Court denied review of the Nashville case, three Justices thought that certiorari should be granted 37 because of doubts as to the constitutionality of the transfer provision. The Fifth Circuit shared those doubts even though it recognized the “practicality" of the Sixth Circuit's views: 38

Nevertheless, ... it seems to us that classification according to race for purposes of transfer is hardly less unconstitutional than such classification for purposes of original assignment to a public school.

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The Fifth Circuit appears to be on firm constitutional ground. In addition to the dubious constitutionality of considering race, the restricted transfer provision seems to lead to compulsory segregation and, the plan therefore does not move toward and can never reach full compliance.

Pupil assignment

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All of the former Confederate States have adopted laws since May 1954 empowering and directing a State or local board to enroll and assign pupils individually to its various schools. Essentially, there are two types of placement plans: the North Carolina plan and the Alabama plan.“

The former, which is followed with procedural variations by Virginia (South Carolina has a similar law, not yet applied), directs that the assignment of pupils to particular schools shall be guided by the following considerations: orderly and efficient administration of the school; effective instruction; and the health, safety, and general welfare of the pupils. The North Carolina law vests complete and final enrollment authority in the local board. In Virginia “ this power is in the State pupil placement board unless a local board has exercised its option to assume this function-(four local systems have recently done so).

Under the Alabama plan, in effect in eight States, local school boards are directed to assign pupils in accordance with many detailed criteria which do not include race. These criteria fall generally into the following classifications: (1) available school plants, staff, and transportation; (2) school curriculums in relation to each pupil's academic preparation and scholastic abilities; (3) the pupil's morals, conduct, health, personal standards, home environment; and (4) effect of admission of the pupil on other pupils and the community.

Under both plans, after the appropriate board has made an original assignment, the parent or guardian of any child may request his transfer to another school. If transfer is denied, provision is made for protest and hearing and, in some cases, appeal to a higher board or court. Some States make no administrative provision for the protest of the initial assignment, which may be of significance in determining when a pupil may resort to the courts for relief from allegedly unconstitutional administrative action.

If the criteria used are not arbitrary or unreasonable and do not relate to race, it seems clear that an impartial assignment of each pupil to the appropriate school is permissible. However, constitutional questions may arise both as to the criteria and their administration. It must be remembered that the Shuttlesworth case “ did not uphold the constitutionality of each criterion for pupil assignment in the Alabama law. That decision merely held in effect that there was at least one valid criterion included therein.

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As to administration the questions are: (1) what sort of board action on pupil assignment constitutes desegregation? (2) can initial assignments be made on a racial basis? and (3) can assignments be made on the basis of the prescribed criteria without first classifying schools by the same criteria?

Board action required.—Court decisions are in conflict as to whether the mere existence of an assignment law in and of itself constitutes a desegregation plan for each local school district in the State or whether it merely provides the legal machinery for one. This question is important because only a few school boards in 5 of the 11 States having pupil placement laws have made any pretense of using them.

If a pupil placement law is not deemed a desegregation plan but merely machinery which may be used to achieve a nondiscriminatory operation of a school system, some affirmative action by the school board is needed to put it into effect. In the absence of any action by the board, a class suit can be brought to force the board to act. If on the other hand the mere existence of a placement law, without any action to implement it, constitutes a desegregation plan, those seeking relief from segregation may be required to exhaust available administrative remedies individually before bringing suit. The latter requirement is often extremely onerous.

The courts have taken three positions on this issue. The Fourth Circuit has viewed the North Carolina pupil assignment and enrollment act as constituting a desegregation plan; therefore it has dismissed desegregation suits when plaintiffs' administrative remedies had not been exhausted.

The Fifth Circuit took the opposite view in Gibson v. Board of Public Instruction of Dade County,“ holding that the Florida pupil placement law provides merely the legal machinery for effectuating desegregation. Therefore, administrative remedies did not have to be exhausted before suit was brought. In this case, the court said: 48

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...we cannot agree with the district court that the pupil assignment law, or even that the pupil assignment law plus the implementing resolution, in and of themselves, met the requirements of a plan of desegregation of the schools or constituted a "reasonable start toward full compliance” with the Supreme Court's May 17, 1954, ruling. That law and resolution do no more than furnish the legal machinery under which compliance may be started and effectuated. Indeed, there is nothing in either the pupil assignment law or the implementing resolution clearly inconsistent with a continuing policy of compulsory racial segregation.

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The Eighth Circuit appears to have taken a middle ground. In Dove v. Parham “ the district court held that the plaintiffs were not required

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to exhaust administrative remedies before bringing suit because the school board had failed to prove that it had used the laws in good faith. The court of appeals reversed, saying:

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If there could be any right on the part of the courts to disregard the placement or assignment statute before use and application of it, it would only be on the basis that it was legally certain that it was going to be used as a subterfuge for effecting an unconstitutional result.

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Nevertheless, the court did not order the action dismissed (as the Fourth Circuit consistently has), but directed the lower court to enjoin the school board from continuing to maintain a segregated school system and to retain jurisdiction of the controversy.

The Fifth Circuit advances what seems to be the more solid reasoning. In its later decision in Mannings v. Board of Public Instruction of Hillsborough County,62 it again held that the plaintiffs were entitled to prove that the board was continuing to operate its schools on a racially segregated basis; exhaustion of all “remedies” under the pupil placement law was not required. The court said: 5

We conclude that, without being required to make application for assignment to a particular school, the individual appellants, both for themselves and for the class which they represent, are entitled to have the trial court hear their evidence and pass on their contention that the pupil assignment plan has not brought an end to the previously existing policy of racial segregation.

The point is that of itself, the law on the statute books does nothing. And as the Fifth Circuit said in the Gibson case, the adoption of a resolution declaring an intention to carry out the law does no more.

If the Fifth Circuit's reasoning is accepted, then class actions—actions on behalf of a group of Negro children—can be brought; under the Fourth Circuit's reasoning only individuals can get relief and only after exhausting often illusory administrative remedies. It is not clear in some of the Fourth Circuit cases whether the contention was that the placement law was not used at all, or that it was used in a discriminatory fashion. If the former, then a class action on behalf of the Negro schoolchildren to get the desegregation process underway, seems warranted, and would be permitted under the Fifth Circuit rule. If the latter, the plaintiffs should have been allowed an opportunity to show discrimination since the North Carolina statute provides no remedy for the purpose of protesting an original assignment. (North Carolina's administrative procedures begin when someone is denied a transfer request.) The Fourth Circuits position seems to give encouragement to school boards that pay lip service to pupil placement laws, and continue to make all initial assignments on a racial basis.

Assignments by race.—In practice most school boards under the cover of pupil placement laws first assign all white pupils to white schools and all Negro pupils to Negro schools, subject to the right of any pupil to apply for reassignment. (The Virginia State Pupil Placement Board is the exception. It requires application for original assignment from all pupils entering the school system or graduating to a new level.) 64 When initial assignments are made racially, the Negro pupil has the burden of seeking assignment or reassignment to a white school and of establishing his eligibility therefor under the board's criteria. School boards seem to take the position that if a Negro child does not seek transfer, he has consented—indeed, chosen—to stay in a segregated school.

In Beckett v. School Board of Norfolk,55 a Federal district court found that the Virginia State Pupil Placement Board was making all initial assignments on a racial basis, and then requiring Negro children to seek transfer under the placement law if they wished to attend a nonsegregated school. This practice, the court found, imposed burdens and requirements on Negro children not imposed upon other children, and therefore constituted a denial of equal protection of the laws and also was plainly in derogation of the placement law.

In the case of Dodson v. School Board of Charlottesville,56 the Court of Appeals for the Fourth Circuit considered the administration of the court-approved desegregation plan for that city. At the elementary level the plan required initial assignment to the school of the zone of residence, subject to the right to apply for transfer. The court found, however, that Negro children living in the zone of a former white school were initially assigned to the Negro school in another zone, while white children living in the zone of the Negro school were initially assigned to a white school. The court pointed out that under the plan there was one criterion to be applied in making initial assignmentsresidence—and it was not being applied. Race was the basis of assignment, except for white pupils living in the zone of white schools and Negroes living in the zone of the Negro school. “There can be no question," the court said, “that these practices are forgidden by the 14th amendment to the Constitution of the United States.57

This decision clearly stands for the principle that initial assignments based on race violate the Constitution even though there are provisions for transfer.

Norwood v. Tucker, 18 or the second Little Rock case, is similar to the Charlottesville case. The original court-approved desegregation plan established attendance zones. After the Arkansas pupil placement law was adopted, the board proceeded to make all assignments and reassignments under the criteria of that law. Before the opening of school in August 1959 the school board announced that all Negro

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