students wishing to do so could register at the Negro high school without regard to their residence. White students living in the zone of the Negro school were given a similar privilege regarding the white high school. Fifty-nine Negro students chose not to exercise this option and registered at the white school in their residential zone.o1 Their registration forms were marked with a special identifying symbol. In making original assignments (registration apparently being considered an application therefor) of 2,600 students "en masse," the board assigned 3 Negroes to each of 2 formerly white schools where they had registered, and all of the other 53 Negroes to the Negro school, despite their areas of residence or their places of registration. All white students were assigned where they registered. The U.S. Court of Appeals for the Eighth Circuit held these initial assignment procedures invalid: "2

. . . It is established without any serious dispute that the board's assignment criteria under the pupil placement laws was [sic] not applied to any white student in making these initial assignments; that no white student was refused assignment to the school of his residence area or registration; and although controverted, the evidence convincingly establishes that in making the initial asassignments of plaintiffs and other Negro students, the board's action was motivated and governed by racial considerations.

In the consolidated cases of Wheeler v. Durham City Board of Education and Spaulding v. Durham City Board of Education,°3 the court specifically condemned the school board's practice of assigning elementary students on the basis of two sets of city maps, one zoned exclusively for white students and the other for Negroes. It also criticized plaintiffs for giving little information (other than the desire to attend an integrated school) as to why reassignment was requested. The court said plaintiffs were in fact seeking a totally integrated school system rather than reassignment to any particular school. Citing Briggs v. Elliott and Thompson v. County School Board of Arlington County, it repeated, "the Constitution of the United States does not require integration, but merely forbids discrimination." "

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The problem here as in other North Carolina cases is that plaintiffs were attempting to challenge initial assignments by race as a continuation of the segregated system, but the Fourth Circuit rule required them to apply for reassignment and protest the denial of reassignment. Nevertheless, the court held specific practices of the board "discriminatory and thus forbidden by the 14th amendment." 67 In addition to assignment by a dual system of attendance areas and the lateness of notice, it condemned "the failure of the board to adopt any criteria or standards for considering applications for reassignment, and the failure of the board to apply such criteria or standards equally to whites and

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Negroes in the same situation." " The court suggested that residence and academic preparedness have been uniformly approved as appropriate standards for considering transfers and that there may be others.

Since the record clearly showed that the board had not considered them on their individual merits, the applications of the 133 plaintiffs who had exhausted administrative remedies were returned for reconsideration.68a

The condemnation of initial assignment by a dual system of attendance areas is essentially an interdiction of initial assignment by race. Elimination of racial assignments in the first instance and the establishment of definite standards for reassignment, applicable alike to whites and Negroes, would seem to accomplish a constitutional operation of the Durham public schools. Some district courts, however, continue to permit initial assignments by race.

In Griffith v. Board of Education of Yancey County," the Negro plaintiffs exhausted their administrative remedies as required by the Fourth Circuit rule and joined in a suit against the board for refusing, because of their race, to assign them to particular schools. All plaintiffs, grades 1 to 12, inclusive, were originally assigned by the board to a two-room Negro school and their individual applications for transfer were denied. The court ordered the admission of all of the high school pupils to one of the two accredited white high schools in the county. The order as to the high school students seems to have been based on the inferiority of the two-room Negro school as compared with the white high schools, rather than on the racial character of the assignments made by the board. As to the elementary school pupils, the court said: TO

...

One would be naive not to feel that the [two-room school] was constructed for the sole use of the Negro children of Yancey County who possess the elementary school qualifications, and on its face it would appear that the board is attempting to maintain a policy of segregation. . . . Accordingly in the light of the overcrowded [white school] and the construction of the new [two-room Negro] school, I am of the opinion that the matter of the assignment of the minor plaintiffs qualified for admittance to the elementary schools of Yancey County should be reconsidered by the board. .

By its reference to the overcrowded condition of the white schools and the apparently ample facilities of the Negro school, the court thus seemed to countenance a possible initial assignment essentially on racial grounds. If so, this decision was not in line with the rule later announced by the Fourth Circuit in the Charlottesville case, condemning the use of race as a criterion in original assignments.'

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In Northcross v. Board of Education of Memphis a Federal district court dismissed a suit asking for relief from the segregated operation of the Memphis schools, on the ground that plaintiffs had not exhausted their administrative remedies under the Tennessee pupil placement law. It also held that the board's announced intention of using the placement law was equivalent to a start toward desegregation, even though it continued to make all assignment by race: 73

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The Memphis Board . . . has fully realized it is under a clear legal duty to initiate and to bring about an elimination of racial segregation. The court finds it has already done that, as a matter of fact, when they set up operations under the Tennessee pupil placement plan.

The court expressly followed the Fourth Circuit rule with regard to exhaustion of legal remedies. (That circuit's rule condemning initial assignments based on race (the Charlottesville case) was not available since it was handed down on the same day.) The Sixth Circuit, to which Tennessee belongs, has not had occasion to rule on these questions. Need for classifying schools.—Courts have found error in the rejection of Negro applications for transfer to a white school when the grounds for rejections were not applied to white students seeking admission to, or already in, the school. 74 Among the grounds for rejection that have been struck down are overcrowding, if new white students were being admitted; 75 lack of mental or emotional stability or other psychological criteria, when not shown to be apposite; 76 and low academic achievement or mental capacity, when some white students in the school had the same or lower achievement or mental capacity."

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Underlying these decisions, although not expressly recognized in them, appears to be the lack of a classification of schools to match the admission criteria that were being applied. In the absence of such a classification of schools, the school board that applies academic criteria to Negroes seeking to enter a white school appears to be in the untenable position of having implicitly classified all white schools as for superior students only, and all Negro schools as for inferior students only, and as having at least preliminarily determined that all white pupils are superior to all Negro pupils. This, of course, would be an arbitrary classification based on race alone. In the second Little Rock case, for instance, it appeared that citywide tests showed a graduation in the median IQ and achievement scores from Mann (the Negro school), through Technical (the trade school), to Central and Hall (the white schools), in that order." But it was conceded in testimony "that in all schools there would naturally be students who fell below and rose above these median figures, and that there are bright, average, and dull students in all of the schools." "9

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Courts seem to be seeking a solid basis for classification in saying that the Negro applicant cannot be rejected for reasons not applied to white applicants, or for low IQ or achievement when there are white students in the school of as low or lower IQ or achievement.81 What they have not explicitly recognized is that the only practical solution is a system of definite classification of the various schools.

Classification of schools by purpose is not new. At the high school level curriculum is often the basis of classifications; e.g., college preparatory, scientific, technical, commercial, vocational, and industrial. Scholastic qualifications for admission, if applied equally to all, are certainly constitutionally unobjectionable. At all levels in some systems there are separate schools for the physically handicapped, retarded, emotionally disturbed, and incorrigible. Some form of certification as to the particular disability is usually required before a child can be assigned to such a special school.

A great deal of the confusion, inconsistency, injustice, frustration, and litigation arising out of the administration of pupil placement laws could be eliminated if school boards classified their schools and related their placement criteria thereto. For example, if IQ or achievement were the criterion, one school could be designated for pupils scoring 100 or better, and another for pupils having an IQ score of 99 or less. Bringing school classification and placement criteria into line would also solve the problem of arbitrary and unreasonable criteria. Clearly a constitutional classification of schools must relate to such things as curriculums, academic standards, or teaching methods. Special teaching methods are required for certain types of schools, such as schools for the physically handicapped, the retarded, the blind, and the deaf. Obviously, public schools could not be classified by the morals of the pupils or their parents, by home background, by general health or personal standards. These factors do not relate to education or educational processes. The day of special public schools based on social classification such as existed in the early days of the Republic is long since past.82 An attempt to do so now would certainly be held a denial of equal protection of the laws.

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In the second Little Rock case, the court of appeals found that in considering Negro students' applications for transfer, "the board was preoccupied with considerations not ordinarily deemed relevant to normal school criteria, and that, consciously or otherwise, the standards and criteria were applied by defendants for the purpose of impeding, thwarting and frustrating integration. . . One of the board's preoccupations was with the "attitude" of the applicants at the hearing on their transfers. It found some were "evasive," "disrespectful," "hostile," "uncooperative" or "improper." Several applications were denied on such grounds. One student, who was found to be academically qualified and unobjectionable from the standpoint of morals, health, and personal

standards, was rejected on "attitude and ability to adjust and home environment." The court noted that at the hearing of this child's application, the father of the student, a doctor, gave the board a rather spirited lecture as to its constitutional duties.

Since the procedures used by the board in making initial assignments had been found discriminatory, it was not necessary for the court to pass upon individual denials of reassignments. Hence, no specific criterion or group of criteria were condemned as irrelevant. But it does appear that this court believed that the criteria used in placing pupils must be relevant to the business of operating schools. This would be assured if it were explicitly required that criteria used for assignment of pupils be related to a definite classification of the schools.

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Judicial guidelines.-Although about 40 court cases have considered the rejection of applications for transfer, few definitive guidelines have emerged. Residential proximity to a school without regard to zoning is almost universally upheld as a basis for determining school assignments,85 as is residence in a properly established attendance area. (The propriety of the attendance areas seems questionable where they were established under a dual system of racial schools and not revised, but this has been upheld.) 87 A Negro living in the appropriate attendance area cannot be subjected to transfer tests which his fellow white students are not given.88 In one case, after a special survey showed that the applicant for transfer lived 15 feet nearer to the Negro school than the white school for which he applied, a forced assignment to a Negro school was upheld.89

Scholastic achievement has been held a valid factor for consideration with respect to an application for transfer. However, a Negro applicant cannot be barred from a white school if white students are not excluded on the same basis," or, where achievement is the criterion applied, if the applicant's achievement is equal to or better than that of the lowest white student in the class to which he seeks admission.91 Overcrowding has been upheld as a ground for denial of midyear transfer of a Negro student," but the same court rejected this as a reason for denying transfer the following fall when new classes were being made up.95

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The educational undesirability of repeated transfers was sufficient to deny a transfer to a student who lived closer to a new Negro school about to be completed than to the white school for which he applied, since he would be subject to transfer to the new school when completed." Likewise, the denial of transfer of a high school senior was upheld when he had only a few more months to go to complete high school."

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Possible racial tension and violence, or threat of friction and disorder," as criteria for denying transfer have been held to conflict with the Supreme Court decision in Cooper v. Aaron. "Isolation" in school

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