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is a legally insufficient reason to deny a transfer," and "adaptability" has been held legally questionable.
A plan calling for transfer upon the basis of tests to establish mental and moral health, intelligence, suitability of the existing curriculum, and adaptability to the required emotional and social adjustment has been approved by a Federal court, 101 but no case has arisen in which actual denial of transfer under this plan has been tested. Another courtapproved plan includes all of the above factors, plus psychological considerations, home environment and morals, conduct, health, and the pupil's personal standards.102 Again, its application has not come before a court. The opinion in the second Little Rock case 108 shows that several of these criteria were applied to Negro applicants by the Little Rock board but, having found the original assignments based on race unconstitutional, the court did not specifically pass upon any of the criteria relating to applications for reassignments.
ALL DELIBERATE SPEED
In the previous chapter it was pointed out that the School Segregation Cases were predicated upon a finding that the Negro and white schools involved had been equalized, or were being equalized, in all tangible factors.104 In the absence of such equality there would appear to be no authority for the application of the doctrine of protracted compliance with all deliberate speed; compliance must be forthwith.20
The classic situation of inequality in tangible factors is the absence within the school system of any school for Negroes. In Kilby v. Board of Education of Warren County,106 the first case of its kind since 1954,
" the district judge ordered immediate admission of all resident Negro students to the high school maintained for white pupils. Theretofore Negro students had been given tuition grants to attend school in another county. The court remarked that this method of providing education had not been acceptable under the outmoded separate-but-equal doctrine. It cited in this connection a pre-1954 decision in a Federal district court also in Virginia.107 It might have cited the Supreme Court decision in Missouri ex rel. Gaines v. Canada which specifically so held.108 Since the Warren County case, three other Virginia school districts which did not maintain a high school for Negroes have also been ordered to admit them immediately to the high school for white students. 109
Curriculum disparities as between white and Negro high schools, another classic measure of tangible inequality, has led to an order to admit a Negro to a white school, even though the pupil was not eligible for admission under a court-approved plan.
These decisions seem sound in theory because the rationale of the School Segregation Cases seems to be that where tangible equality exists, the public interest in an orderly transition may outweigh the plaintiff's personal rights. But where there is tangible inequality, the plaintiff's rights may have greater weight. A difficult situation could arise, however, if a large number of Negro pupils demanded immediate admission to white schools on this ground. In spite of the inherent difficulties, voluntary action to admit large numbers of Negroes to white schools was taken in the first years after the School Segregation Cases in some States, notably Oklahoma and Kentucky, upon the closing of substandard Negro schools. Such voluntary recognition of the inequalities in the existing Negro schools seems, however, to be a thing of the past.
Immediate general admission may also be required even when schools are equal in tangible respects. In Cooper v. Aaron 111 when the court said that in many locations, obedience to the constitutional duty to desegregate "would require the immediate general admission of Negro children, " 112 it apparently went beyond mere tangible inequality, referring to all cases where administrative difficulties did not warrant delay.
Recently, complete and immediate desegregation has occurred mainly in schools serving dependents of military personnel where the number of Negro students was not large. Both by court order 113 and by voluntary action on the part of school authorities, in some places all schoolage children of Negro military personnel have been admitted to the off-base school serving dependents of white personnel.
The Court of Appeals for the Third Circuit in Evans v. Ennis recognized the need for immediate, general admission of all Negro pupils seeking admission to the white schools in the still segregated school districts in Delaware. It rejected a grade-a-year plan approved by the district court and insisted upon a plan that would provide for the immediate admission to white schools in all grades of all Negro children who desired it, in the fall of 1961 and thereafter. The court distinguished the situation in Delaware from that in Nashville where a 12-year plan had been approved by the courts:
Many of the school districts and high school areas of Delaware with which we are concerned are in rural or semirural areas, and the number of presently segregated Negro schoolchildren involved in the whole of Delaware is much less than the number involved at Nashville. Integration problems are more difficult of solution in heavily populated urban areas.
The more restrictive standards of southern communities were inapplicable in Delaware, the court said, because it was further along “upon the road toward full integration.” 117 The court found the statement of the Chief Justice in the School Segregation Cases that "at stake is the personal interest of the plaintiffs [Negro schoolchildren] in admission to public schools as soon as practicable on a nondiscriminatory basis,"
;" 118 particularly pertinent. 110 Closely allied to the question of when the immediate, general admission of all qualified Negro pupils is appropriate, is the question of the rights of the particular plaintiffs in an action. Grade-a-year plans beginning at grade i usually preclude the plaintiffs from ever enjoying their constitutional rights. Since the plaintiffs must have been eligible for school when their case was brought, it is hardly likely that they will be entering first grade when the court-approved plan goes into effect. As desegregation progresses through the grades year by year, so will theythus keeping constantly ahead of it. Most courts have ignored this, but the Third Circuit in the Delaware case was keenly aware of the plaintiffs' rights. One of its grounds for reversal was that “the plan as approved by the court below will completely deprive the infant plaintiffs, and all those in like position, of any chance whatever of integrated education, their constitutional right.” 120 The court cited Lucy v. Adams 121 in support of the proposition “that individual plaintiffs in a class suit. . . have a personal right to immediate enforcement of their claims if such be feasible.” 122
It seems clear that under the doctrine of all deliberate speed and the statement of the Chief Justice quoted above, the rights of the individual plaintiffs and others may be deferred; but whether they can be deferred forever by the terms of a court-approved plan will have to be faced by the courts. The difficulty inherent in a grade-a-year, 12-year plan beginning at grade one would, of course, be obviated by beginning at grade 12 and working down. But the educational advantages of starting at grade one are obvious. The gap in scholastic achievement between the average white student in the white school and the average Negro student in the Negro school becomes progressively greater year after year. It is smallest at grade one.
Another solution was inserted into a 7-year gradual plan by a Federal district court in Maryland in Moore v. Board of Education of Harford County.123 In that case, after the desegregation of the elementary schools, the junior and senior high schools were to be desegregated a grade a year beginning with the seventh grade. All elementary pupils were given a choice of attending either the school traditionally attended or the nearest school. Thus, the plan would have precluded all Negro children in the sixth grade or above at the time, including some of the plaintiffs, from ever attending a desegregated high school. To prevent this result, a provision was made for individual application for transfer to be approved or disapproved by a special committee created for that purpose. This is, in effect, grade a year on the nearest school basis, plus pupil placement for all the grades not yet reached. If it be decided that the plaintiffs, and all others similarly situated, cannot be completely denied the enjoyment of their constitutional rights, some such provision may be required to save all grade-a-year plans, except those beginning at grade 12.
One grade-a-year desegregation plans beginning either at the ist or at the 12th grade have been approved by several courts.124 In some cases the plans call for rezoning of the attendance areas, and initial assignment of pupils affected to the school of their residential zone. In others, pupils affected are permitted to apply for transfer from the racially segregated school to another school and, if they meet tests prescribed by law, the application is granted. The two plans have only one feature in common—the time scale of 12 years to reach complete compliance.
There seems to be more justification for the 12-year implementation of a plan based on rezoning than one based on pupil placement—at least where the latter is accomplished by transfers only. Rezoning involves a rather general reshuffling of pupils from one school to another. In a large school system the administrative problems in such an undertaking are significant. But, before approving a 12-year pupil placement plan, the courts can insist upon rules and procedures that will lead year by year to full compliance at the end of the period, and they can facilitate compliance within the period. Some appellate courts have been careful to specify that the 12-year transition is maximum, that the lower court having jurisdiction may accelerate the program. Such caution seems wise because circumstances change. The Supreme Court specifically instructed lower courts to retain jurisdiction during transition periods, which would permit orders to be modified to reflect altering circumstances. Thus, the Fifth Circuit said in the Dallas case:
In so directing, we do not mean to approve the 12-year, stair-step plan "insofar as it postpones full integration.” See Evans v. Ennis, 3d Cir., 1960, 281 F. 2d 385, 389. The district court has not expressly passed on whether that much delay is necessary, or whether the speed is too deliberate. It retains jurisdiction of the action during the transition. See Kelley v. Board of Education of City of Nashville, supra; Aaron v. Cooper. ... After the approval of Plan No. 1 . . . the future order of the district court should be governed by the rule so well stated in Brown v. Board of Education, 1955, 349 U.S. 294, 300, 301 ...:
“The burden rests upon the defendants to establish that such time is necessary in the public interest and is consistent with goodfaith compliance at the earliest practicable date.”
Unless a warning of possible acceleration at a later date is given, however, community acceptance of a speedup schedule might present the same problems as a first step.
In three cases—arising in Delaware, Kentucky, and Virginia—a 12year period for compliance has been disapproved as not warranted by the problems of transition, and immediate desegregation has been ordered in all grades.126
Other time factors
The Virginia State pupil placement law by requiring individual assignment of all new pupils, and automatically reassigning old pupils to the school previously attended, introduces a definite time factor, but one of less than 12 years. New pupils are defined by the law as those entering school for the first time (kindergarteners and first-graders), and those transferring to, and graduating within, the school district. Thus, if the schools of a particular district are on an 8-4 basis, those who entered second grade the year the law was put into operation would come up for individual assignment for the first time upon graduation from eighth grade. Under a 6–3–3 division of school, the maximum period would be only 5 years.
The Virginia law, in theory at least, avoids the objectionable practice of automatically making all initial assignments on a racial basis. The time feature of the law has not been tested in court, but it seems to be a reasonable method of implementing the placement law and of satisfying the requirements of all deliberate speed, particularly since all pupils automatically reassigned to the school previously attended have the right at all times to apply for reassignment.
In some cases, courts have approved gradual implementation plans without requiring that any time scale be set. This procedure does not seem to meet the requirement of the second Brown decision, which required proof of administrative cause for delay.127 Without such proof a court has no basis for deciding the question of all deliberate speed, one of the three interrelated questions that must be decided to determine the constitutionality of any plan.
In the Charlottesville case,128 the Fourth Circuit affirmed a denial of transfer, even though the administration of the previously approved plan was found clearly discriminatory. The court condoned the board's action because "they (the members of school board and school superintendent] intend in good faith to achieve as promptly as possible the desegregation of