South Carolina

Statutes enacted during the 1961 session of the South Carolina Legislature extend to the local authorities in two counties the power to cut off funds from schools desegregated by court order.83 A law requiring the cutoff of State funds from such schools had been enacted in 1955.8

Georgia

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The 1961 session of the Georgia Legislature began a few days after the admission of the first two Negro students to the University of Georgia in compliance with a Federal court order. Confronted with this challenging experience and supported by the report of the Sibley Committee and testimony of many civic groups, the legislature modified its position from massive resistance to limited compliance. In June 1960 the president of the Georgia Bar Association, argued against school segregation laws on the theory that they made it easier for Negro litigants to obtain blanket Federal court orders for desegregation of schools, saying:

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I have found (after an examination of desegregation rulings in Southern States) that those cases that were lost (by the defendants) were lost not only in spite of local segregation statutes, but in every instance were lost because of them.

I found in fact, that while a school board may or may not win a school suit if the State has no (segregation) laws, it is absolutely and utterly impossible to win if it does have such laws.

He pointed out that North Carolina has no State segregation laws and that Federal courts there have consistently dismissed class actions to desegregate schools and required individuals to pursue the administrative remedies of the pupil placement law before seeking relief in the Federal courts.8

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Another group working for repeal or amendment of the State school segregation laws to avoid a closing of public schools is called HOPE, Inc. (Help Our Public Education).3 No doubt it was instrumental in causing the State administration to reverse its stand of massive resistance and to oppose the closing of schools, withholding of funds from desegregated institutions, and defiance of the orderly judicial processes. All massive resistance laws enacted in 1952 were repealed and the "open school" package introduced by the administration was passed with only token opposition."

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The open school package in general follows the new Virginia pattern. It includes a tuition grant act giving all school children "free choice" between private or public schools; 89 and another giving local commu

nities the right to vote on closing and reopening of schools upon the majority vote of the board of education, or a petition of at least 15 percent of the registered voters." This statute also provides for the suspension of compulsory laws in districts in which the public schools were closed. Another measure revised the administrative remedies under the pupil placement law by providing for an appeal from the decision of the local school board to the State board of education. The legislature also approved a proposed amendment to the Georgia constitution declaring that freedom from compulsory association at all levels of public education would remain inviolate and authorizing the General Assembly to provide tax funds for "adequate education for the citizens of Georgia.'

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In the face of imminent school desegregation, another law approved at the 1961 session directed the attorney general to study and make recommendations to the several boards of education as to the extent of their discretion in imposing enrollment restrictions and qualifications in pupil placement.93 The legislature also created a five-member Educational Rights Committee to investigate any attempted pressure and influence which might cause disharmony within State educational institutions on the matter of integration. The committee's attention was directed particularly to desegregated institutions where persons endorsing integration might be favored; to State officials who might infringe rights guaranteed under the Georgia constitution; and to activities that might occur which would lead to violence, or bring public ridicule upon the State or its institutions.94

As a result of its 1961 legislative session Georgia may be said to have left the ranks of defiant States to which Alabama, Louisiana, Mississippi, and South Carolina still belong, and to have joined Florida, Arkansas, North Carolina, Tennessee, and Virginia in a policy of compliance— even though on a very limited basis-with the law of the land.

6. The Threat to Education

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no instrumentality less universal in its power and authority than Government can secure popular education. popular education, moreover, no government which rests on popular action can long endure.

WOODROW WILSON

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As a premise to its conclusion in the School Segregation Cases that arate educational facilities are inherently unequal, the Supreme Court stressed the importance of education as "perhaps the most important function of State and local governments," 1 and observed that the opportunity for education “. . . where the State has undertaken to provide it, is a right which must be made available to all on equal terms." 2 In 1955 a three-judge Federal district court in discussing the Supreme Court decision in Briggs v. Elliott, one of the original School Segregation Cases, elaborated on "what the Supreme Court has decided and what it has not decided in this case": "

[It] has not decided that the States must mix persons of different races in the schools or must require them to attend schools or must deprive them of the right of choosing the schools they attend. What it has decided, and all that it has decided, is that a State may not deny to any person on account of race the right to attend any school that it maintains. ... Nothing in the Constitution or in the decision of the Supreme Court takes away from the people freedom to choose the schools they attend. . . . The 14th amendment is a limitation upon the exercise of power by the State or State agencies, not a limitation upon the freedom of individuals.

This exegesis underlies a number of measures taken by States of the Deep South in response to the School Segregation cases. The 14th mendment prohibits racial segregation only by the States and their nstrumentalities. Eliminate participation by the States in the field of education, and segregation can be preserved. Measures premised on his reasoning were enacted by all of the former Confederate States save Tennessee, ranging from laws compelling or allowing the closing ɔf public schools, through the repeal of compulsory school attendance

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laws, to tuition grants and other devices allowing substitution of private (and segregated) schools for public (and possibly desegregated) schools. These measures appear to threaten a fundamental concept of American society-that of free, universal, and compulsory education. The purpose of this chapter is to examine the nature of these measures, and their constitutional and practical implications.

SCHOOL CLOSING LAWS

Six States have, at one time or another, adopted legislation which directs or permits the closing of schools to avoid desegregation. In three States such laws have been repealed or struck down as unconstitutional; but the threat of school closing remains.

An extreme example of such legislation was that adopted in Mississippi in 1954 and 1958. In December 1954 a constitutional amendment was adopted and approved by a 2 to 1 margin which authorized the legislature or the local school districts to close public schools in the State upon a majority vote of both houses of the legislature. In 1958 the Mississippi Legislature gave the Governor authority to close any State institution of higher education, and all schools of any school district if he deemed it to be "to the best interest of a majority of the educable children of any public school of that district.” 7

Immediately following the Supreme Court decision in Cooper v. Aaron in September 1958, Governor Faubus signed a bill adopted by the Arkansas General Assembly giving him the right to close a school or schools in any particular school district if he determined that there was "actual or impending domestic violence" endangering lives and property; if Federal troops were stationed in or about a public school; or if he determined that an "efficient educational system cannot be maintained in any school district because of the integration of the races in any school within that district." The Arkansas Supreme Court upheld this act as constitutional under both the State and the Federal Constitutions in Garrett v. Faubus,10 stating that it was a reasonable exercise of the State police power to meet an emergency. The State court added:11

If act 4 is viewed as giving the Governor the power to close all public schools permanently, it would, we conceive, be in violation not only of the decree in the Brown case but also of the State constitution, but we do not consider it that way.

However, in the wake of the State struggle against desegregation of the Little Rock high schools, a three-judge Federal district court found this