to maintain segregated schools for children whose parents chose segregation. Still another declared invalid an amendment to the Louisiana constitution that attempted to justify school segregation as an exercise of State police power. A companion statute withdrawing State accreditation from any school that did not maintain racial segregation, and another Louisiana constitutional amendment withdrawing the State's consent to suits against State educational agencies met the same fate.* In answer to the claim of the Governor and Legislature of Arkansas that State officials had no duty to obey Federal court orders, the Supreme Court declared, in Cooper v. Aaron: "

It is, of course, quite true that the responsibility for public education is primarily the concern of the States, but it is equally true that such responsibilities, like all other State activity, must be exercised consistently with Federal constitutional requirements as they apply to State action. The Constitution created a government dedicated to equal justice under the law. The 14th amendment embodied and emphasized that ideal. State support of segregated schools through any arrangement, management, funds, or property cannot be squared with the Amendment's command that no State shall deny to any person within its jurisdiction the equal protection of the laws.

This definition of State action within the meaning of the 14th amendment undermined State-supported resistance to public school desegregation-and formed the basis for massive legal blows against massive resistance.

It was no surprise, therefore, when in the first months of 1959 a Federal court in Virginia held that a State which maintained a public school system violated the principle of equal protection if, to avoid desegregation, it closed one school while keeping others open. A few months later a Federal court in Arkansas held a school closing law unconstitutional under the due process and equal protection clauses of the 14th amendment. At the same time it voided a companion act that provided for transfer of public funds from closed schools to other public, or private, schools attended by the students of the closed schools.'

By the second term of the 1958-59 school year, schools in three Virginia districts, closed by the Governor after Federal courts had ordered admission of Negro children, were reopened after the laws under which the Governor had acted were held invalid. Massive resistance had proved ineffective. New and more subtle tactics were needed if the State policy of resistance was to be continued. Legislation enacted in 1959-61 reflected this need.

1959 LEGISLATIVE SESSIONS

Virginia

The Virginia General Assembly, called into extraordinary session in January 1959 as a result of the collapse of massive resistance, again took the lead by devising what has become the new defensive approach. At first the only alternatives to massive resistance appeared to be either desegregation or complete abandonment of the State's public school system. However, a third choice was presented late in March 1959 by the Perrow Commission that Governor Almond had appointed to study the problem.

The Commission reported that the most defensible position legally would be for the State itself to go completely out of the school business and leave each locality free to abandon public schools, or to operate them as it saw fit with local tax funds and funds received from the State for general purposes. The Commission took the position that if there were complete local autonomy, the abandonment of a local school system by local action would present no problem of State-imposed unequal treatment of localities.

The Commission, however, recommended neither the complete abandonment of public education nor complete local autonomy, but a middle course whereby the State system would be continued with the greatest possible freedom of choice for each locality and each individual. Adoption of this approach transformed massive resistance into a scheme of local option, tuition grants, and free choice. All mention of school segregation was deleted from the State school laws. Under the earlier law private-school tuition grants were authorized only if the student's public school had been desegregated. Under the new law desegregation was no longer the premise for the subsidized choice of a private school. Parents were entitled to a tuition grant to send a child to a private school within or without the State, or to a public school outside of the school system of their residence.10 The statewide compulsory school attendance law was replaced by a measure giving each local community the right to adopt or suspend compulsory attendance whenever it deemed proper.11 Local boards of supervisors were authorized to make appropriations for public schools for 30-day periods,12 thus facilitating the closing of schools for lack of funds.

Another bill, passed on April 28, 1959,13 gave cities and counties the choice of remaining under the authority of the State pupil placement board, or of giving the placement function to their own local school boards, subject to rules to be adopted by the State board of education. Other measures exempted buildings used for private schools from zoning codes," permitted referenda on the disposal of public school property,15

and authorized school boards to provide transportation at State expense or to allot funds to parents for transportation of children attending nonsectarian private schools, with the cost of the latter program to be borne in equal shares by the school division and the State.16

The Virginia General Assembly, however, defeated attempts to remove from the State constitution the requirement that the State should operate a uniform system of free public schools. In the course of the debates it was disclosed that the Perrow Commission believed the amendment unnecessary because any locality could abandon public schools simply by refusing to appropriate money to operate them.

Five other Southern States-Tennessee, Alabama, Florida, Arkansas, and Georgia-in their regular legislative sessions in 1959 considered legislation to resist, limit, or control desegregation. In all except Alabama active desegregation suits were pending.

Tennessee

The Legislature of Tennessee amended the State compulsory attendance law by making local school boards solely responsible for its enforcement. Without any reference to segregation or race, it authorized a child's parents upon approval of the local school board to withdraw him from a school "for any good and substantial reason," provided the child enrolled within 30 days in another public school designated by the board, or in a private school."

Alabama

The Alabama Legislature in 1959 enacted the so-called Independent School District Plan. This allowed individual schools threatened with desegregation to withdraw from State and local control and set up their own independent districts. The sponsor of the plan, Senator Dumas, described it as "a second line of defense in the battle to preserve our public schools from forced Federal integration-the effect would be to give the Federal courts a lot of scattered targets to shoot at." 18 The legislature also authorized 1o school boards to use public funds to pay tuition grants for residents of their districts attending private nondenominational schools when instruction was not available in the local public schools.

Florida

19

On the basis of a report by the Governor's Advisory Commission on Race Relations,20 the Florida Legislature passed five school bills and avoided the path of a closed school program. One measure authorized the incorporation and operation of private schools.21 Another granted county school boards 22 discretionary power to segregate students by sex. The third measure added to the Florida pupil assignment law several factors

to be considered in pupil assignment.23 The fourth created a board of private education," and the fifth amended the compulsory attendance law. The latter exempted students assigned against their parents' written objection to a school attended by both races, if a transfer was denied or was unavailable.25

Arkansas

27

The Arkansas statutes authorized school districts to provide tuition grants for children unable to attend public schools for reasons beyond their control,26 and permitted public school teachers transferring to private nonprofit schools to continue in the State's Teacher Retirement System.2 Others provided for the withholding of State funds from any school accepting for enrollment a child who normally would attend a different school and granting the funds withheld, to any public or nonprofit accredited private school in the State attended by such child; 28 exempted children assigned to a desegregated public school from compulsory school attendance; and authorized the State Board of Education to provide tuition grants for such children in case they wanted to attend another public school or a segregated nonsectarian private school within the State.29 The legislature also enacted a new pupil assignment measure virtually identical to the Alabama pupil placement law which had been held not unconstitutional on its face.30 The legislature also approved a constitutional amendment that would close schools to avoid desegregation. This proposed amendment, however, was defeated in the November 1960 election.31

Georgia

The statutes enacted by the Georgia General Assembly in 1959 were designed to resist any Federal court order desegregating public schools. One authorized the Governor to close public schools to preserve order and made it unlawful for any official to participate in the operation of such a closed school or expend funds therefor. This statute provided also for transfers from closed schools, and for educational grants to permit students to attend private schools. 32

34

Another statute authorized State income tax deductions for contributions to private schools; 33 another guaranteed payment of teachers' salaries if schools were closed; 3* and another created, as a replacement for the former Commission on Education, a Governor's Commission on Constitutional Government. The new Commission's assignment was to formulate plans to prevent encroachment by the Federal Government on the functions and powers of the State.35

Georgia also passed a law to prohibit any city or county with an independent school system from levying ad valorem taxes for the support of

desegregated schools." This legislation, according to the mayor of Atlanta, was aimed specifically at that city because the rurally dominated legislature considered its racial attitudes too liberal."

1960 LEGISLATIVE SESSIONS

A pattern of undisguised resistance to any form of school desegregation appeared in the 1960 legislative enactments of Mississippi and South Carolina. Other States tried somewhat different approaches.

Mississippi

In Mississippi local school district trustees were given power to close any or all schools within their jurisdiction to serve the "best interest of a majority of the . . . children . . . enrolled" or to "promote or preserve the public peace." 38 Admission to school was denied to any child not accompanied by a parent. It was further provided that a child could not attend any school except in the district of his residence unless legally transferred thereto under the Student Assignment law.39 Parents and guardians were denied the right to file any suit, complaint, action, or administrative proceeding on behalf of a minor without advance approval of a chancery court. The legislature specified that whenever any student enrolled in any public educational institution is convicted of a misdemeanor, the authorities are to report the fact to the institution in which he is enrolled."1

Mississippi's attitude was reflected in a constitutional amendment that repealed mandatory provisions for State maintenance of a public school system and substituted the following: "2

42

The legislature may, in its discretion, provide for the maintenance and establishment of a free public school or schools in each county in the State, with such term, or terms, as the legislature may prescribe.

This was ratified in the November 8, 1960, general election by a vote of over 3 to 1.*

South Carolina

43

During the 1960 session of the South Carolina Legislature the subject of school segregation came up only at the end of the session in debate on the general appropriation bill. Upon the recommendation of a