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Our progress as a Nation can be no swifter than our progress in education. Our requirements for world leadership, our hopes for economic growth, and the demands of citizenship itself in an era such as this all require the maximum development of every young American's capacity. The human mind is our fundamental
President John F. KENNEDY.
The Supreme Court pointed out in Brown v. Board of Education of Topeka," or the School Segregation Cases, that education is perhaps the most important modern function of State and local government. “In these days,” the Court said, “it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education.” ? But, like all governmental functions, this one must be carried out in conformity with the Constitution which requires that education provided by State and local governments be available to all persons on equal terms.
The heavy cost of discrimination in the schools, both to those denied equal opportunity and to the Nation as a whole, led the Commission in the Spring of 1958 to include public education in its studies. This decision rests on the authortity granted by the Civil Rights Act of 1957 which directs the Commission to “study and collect information concerning legal developments constituting a denial of equal protection of the laws under the Constitution,” and to "appraise the laws and policies of the Federal Government with respect to equal protection of the laws under the Constitution."
The Commission has issued two previous reports on the denial of constitutional rights in the field of education. The first, a part of the 1959 Report, dealt with public elementary and secondary schools. The second, in January 1961, was confined to public higher education." The present report returns to the subject of the first: denial of equal protection in public elementary and secondary schools.
Since the 1959 Report went to press, there have been developments in the field of public education of great import to the future of America. One school system closed its doors in September 1959 to avoid the necessity of abandoning racial segregation as required by court order and they were still closed during the school year 1960–61. Tuition grants disbursing State and local funds to pupils who prefer to attend nonsectarian private schools have been widely used in one State, thus weakening the financial support of its public education system. Legislation adopted in other Southern States suggests the possibility of further school closings and extension of the tuition-grant system. Statewide compulsory school attendance laws, effective in all States except Alaska since 1918, are being repealed in the South. As a result, early school dropouts are increasing at a time when far more education than the minimum assured by such laws is needed to develop the full potential of the Nation's youth. Extreme official action to maintain segregation in spite of a Federal court order, and the accompanying civic disorder and white boycott of two public schools in one city in 1960–61, has been a national and international embarrassment. Harassment and economic reprisal against the few whites courageous enough to attempt attendance at these schools continues. The success of extra-legal activities in this city has strengthened the position of those bent on similar opposition elsewhere.
Measured by the number of school districts initiating or extending desegregation each year, progress in 1959–61 was at a much slower pace than in earlier years. Conflicting and confused lower court decisions have created prolonged uncertainty and invited more litigation.
The Commission believes that it can contribute most by an analysis of relevant court decisions, principally those of the past 2 years. This report will begin with the Supreme Court doctrine that racial segregation in the public schools is inherently unequal. It will consider all pronouncements of the Supreme Court indicating what a racially nondiscriminatory system is, and how the change from segregation to nondiscrimination may be achieved. Then the implementation of these principles at the local level (both with and without court approval) will be analyzed to show how they are being interpreted and, in some instances, misinterpreted.
Progress in desegregation in the school years 1959–61 will be recounted, as will the measures adopted by some Southern States to restrict or limit school desegregation. The threat to the very foundation of public education arising from the closing of public schools and the provision of tuition grants to avoid desegregation will also be discussed.
Of course segregation exists widely in public schools in the North although there it presents somewhat different legal problems. The School Segregation Cases dealt with racial segregation by explicit legislative measures (which in 1954 were compulsory throughout 17 Southern States and permissive in 3 more). In the North no laws explicitly
require or permit segregation by race in the public schools. Yet segregation of Negroes, Mexican-Americans, and Puerto Ricans is not un
If this is the result of official action, or under some circumstances of official inaction, the fundamental principle of the School Segregation Cases should also apply. In the North and most of the West, therefore, the problem is to determine whether existing segregation in the schools is the result of official action or culpable inaction. This will be considered.
Limitations of time and staff have not permitted a general appraisal of Federal laws and policies for this report. Attention will be directed only to one Federal program in aid of education—that provided by the Library Services Act of 1956. In addition the powers and performance of the Attorney General under the Civil Rights Act of 1960 8 and by virtue of his responsibility for enforcement of Federal court orders will be examined.
The Commission said in its 1959 Report that the Nation's most urgent domestic issue is how to adjust the operation of our public school systems to constitutional demands while continuing to improve the quality of education for all children. This question is not generally discussed by most writers as a single issue, which the Commission believes it to be, but as two issues. These must be merged and solved together because of the danger that desegregation, without a plan to meet the attendant educational problems, may seriously impair public education. On the other hand measures to improve public education without regard for constitutional requirements may accentuate and perpetuate existing inequalities.
For these reasons the present report will include an account of programs that have been developed by public and private organizations to overcome educational handicaps resulting from generations of segregation. Some of these measures have accompanied or followed desegregation; others have preceded it. All indicate that there are ways to adjust the operation of a public school system to constitutional requirements while continuing to improve the quality of public education for all children,
It is often said that the Civil War centered on the unresolved question of the continuation or abolition of slavery. But Bruce Catton, the celebrated historian of that war, recently said that by 1861 the abolition of slavery was an empty question; that the only really pertinent issue how its extinction was to come about—was not discussed at all. Surely the American Negro would not still be struggling for first-class citizenship if the real problem of abolishing slavery and preparing the former slave for citizenship had been met a century ago. In 1961 the doom of compulsory racial segregation in public schools is perhaps even more clear than the end of slavery was in 1861. If the Nation today can profit from the lesson that problems not faced are not solved, the present issue will be faced and truly solved by united efforts.
2. Supreme Court Opinions
The decisions of the Supreme Court interpreting the requirements of the 14th amendment in public education set the framework within which desegregation must be worked out. Any discussion of these problems must start with an analysis of that framework. The Court's decisions have been few but firm. The basic principles governing the application of the 14th amendment to public education are clear, but many questions remain to be answered.
THE SCHOOL SEGREGATION CASES
In its historic decision in the School Segregation Cases, on May 17, 1954, the Supreme Court held that enforced racial segregation in public education is a denial of equal protection under the 14th amendment. The decision recognized that the Negro and white schools involved had been, or were being, equalized, in all tangible respects.? Yet "separate educational facilities,” the Court held, "are inherently unequal. Court said that the opportunity for an education, "where the State has undertaken to provide it, is a right which must be made available to all on equal terms.” *
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THE SECOND BROWN DECISION
A year later in the second Brown decision the Court addressed itself to the question of how desegregation should be effectuated. After reaffirming the principle that racial discrimination in public education is unconstitutional, it said that “[a]ll provisions of Federal, State, or local law requiring or permitting such discrimination must yield to this principle."
Prior to the second Brown decision, the Supreme Court of Delaware had recognized that the effect of the 1954 decision was to nullify all State constitutional and statutory provisions requiring separate schools