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for the two races. After the clear statement in the second Brown decision, quoted above, many other courts so held.
Although constitutional rights of this type have often been declared to be “personal and present,” ? the Court did not order immediate admission of the plaintiffs to the schools from which they had been barred. Since the actions were class suits, all persons in the position of the plaintiffs in the defendant school districts were, of course, entitled to intervene and seek the same relief. The plaintiffs' constitutional rights (if not their immediate legal remedy) were no greater than the rights of 3 million other Negro, and 7 million white, pupils attending compulsorily segregated public schools in almost 3,000 biracial school districts in 17 Southern States.
The Supreme Court recognized the magnitude of the problem, saying: "Full implementation of these constitutional principles may require the solution of varied local school problems.”It placed "primary responsibility for elucidating, assessing, and solving these problems” on local school authorities, and gave the Federal district courts the duty of deciding "whether the action of the school authorities constitutes good faith implementation of the governing constitutional principles.
The district courts were directed to observe "equitable principles” in reconciling public and private needs. The public interest was said to be the elimination in a systematic and effective manner of the obstacles to operation in accordance with constitutional principles. The private and personal interest of the plaintiffs was declared to be the realization of their constitutional right of admission to public schools on a nondiscriminatory basis as soon as practicable.
Although not expressly stated, the rationale of the Supreme Court's decision to permit a delay in the enforcement of the plaintiffs' rights appears to be that the public interest in an orderly administration of public schools in one-third of the Nation could, for a limited period, outweigh their personal interest—at least in the factual situation presented.
Hence the Court provided for a period of transition from a segregated to a nondiscriminatory school system and, after admonishing the lower courts to require “a prompt and reasonable start toward full compliance with our May 17, 1954, ruling," 18 enumerated the factors that may be considered in determining what additional time, if any, might be “necessary to carry out the ruling in an effective manner." 14 The burden of proof that additional time was required was placed upon the school authorities.
Problems of adjustment The factors that the lower courts were authorized to consider in granting additional time for good faith compliance at the earliest practicable date were:
problems related to administration, arising from the physical condition of the school plant, the school transportation system, personnel, revision of school districts and attendance areas into compact units to achieve a system of determining admission to the public schools on a nonracial basis, and revision of local laws and regulations which may be necessary in solving the foregoing problems.
The courts were further instructed to consider the adequacy of the plans proposed by school authorities to meet the particular problems listed above and "to effectuate a transition to a racially nondiscriminatory school system ... with all deliberate speed.'
The Supreme Court specifically noted that “the vitality of these constitutional principles (set forth in the May 17, 1954, decision) cannot be allowed to yield simply because of disagreement with them.” 17
THE LITTLE ROCK CASE
Three years later in Cooper v. Aaron, or the Little Rock case 18 the Supreme Court amplified both the constitutional principle announced in the School Segregation Cases and its instructions concerning implementation. In doing so it invalidated an order granting a 21/2-year reversion to segregated operation of the Little Rock high schools that had been desegregated under a court-approved plan in the previous fall.
As to the constitutional principle, the Court said that its previous decision “forbids States to use their governmental powers to bar children on racial grounds from attending schools where there is State participation through any arrangement, management, funds, or property.” 10 It further stated the constitutional rights of these school children "can neither be nullified openly and directly by State legislators or State executive or judicial officers, nor nullified indirectly by them through evasive schemes for segregation whether attempted 'ingeniously or ingenuously.'
As to implementation, the Court clarified the principles laid down in the second Brown decision. Good faith compliance with constitutional principles, it said, requires a prompt start, diligently and earnestly pursued, to eliminate racial segregation from the public schools. Hostility to desegregation could be neither a ground for delay nor for reverting to segregation after a start had been made. In many locations, the Court observed, obedience to the Constitution "would require the immediate general admission of Negro children, otherwise qualified as students for their appropriate classes, at particular schools.” 31 A
district court might conclude after analysis of all relevant factors "that justification existed for not requiring the present nonsegregated admission of all qualified Negro children.” 22 If immediate, general admission of all qualified Negro children is not required, however, the program of the school authorities must point toward completion of desegregation at the earliest possible date, and the appropriate steps to put such program into effective operation must have been taken before additional time may be granted. The Court emphasized the duty to end segregation, saying that State authorities (which includes local school boards and superintendents as agents of the State) are “duty bound to devote every effort toward initiating desegregation and bringing about the elimination of racial discrimination in the public school system.” 28
THE SHUTTLESWORTH CASE
Shortly after the second Brown decision, the legislatures of several Southern States 24 seizing upon long-recognized power of school authorities to designate the school each child is entitled or required to attend, authorized and directed school boards to assign children to schools in accordance with specified criteria other than race. These measures are designated as pupil placement, enrollment, or assignment laws.
Two months after the decision in the Little Rock case, the Supreme Court affirmed without opinion the judgment of a three-judge district court in Shuttlesworth v. Birmingham Board of Education 25 “upon the limited grounds on which the District Court rested its decision." This decision gave great impetus to reliance on pupil placement plans by Southern States as a means of meeting legal requirements with little or no actual desegregation. The Shuttlesworth case in the district court turned entirely on a single issue, namely, whether the Alabama School Placement Law was void in toto.26 The law in question enumerated 14 factors to be considered with respect to the assignment of pupils and it had a severability provision. The plaintiff in the lower court conceded that some of the assignment factors were valid. Thus the law could not be held invalid in toto because of the severability clause. The district court stated:
. . The School Placement Law furnishes the legal machinery for an orderly administration of the public schools in a constitutional manner by the admission of qualified pupils upon a basis of individual merit without regard to their race or color. We must presume that it will be so administered. If not, in some future
proceeding it is possible that it may be declared unconstitutional in its application. ...
Thus, it is clear that the Supreme Court decision in the Shuttlesworth case, which merely sustained the lower court upon the limited ground of its decision, was not an approval of all of the 14 factors enumerated in the Alabama School Placement Law. It was at most only a declaration that they are not all invalid, and that assignment of pupils to public schools on criteria other than race is not intrinsically unconstitutional.
THE GIRARD COLLEGE CASE
The Supreme Court decision in the case of Pennsylvania v. Board of Directors of City Trusts,28 or the Girard College case, must be mentioned in view of the statement in the Little Rock case that the desegregation rule applies to schools “where there is State participation through any arrangement, management, funds, or property. The issue in the Girard College case was whether a college established and financed by a private trust was subject to the provisions of the 14th amendment because of its administration by the board of directors of city trusts of the city of Philadelphia. Rejecting the argument that the city officials were acting in a fiduciary, not a governmental, capacity and were not, therefore, subject to the 14th amendment, the Supreme Court said: 80
The Board which operates Girard College is an agency of the State of Pennsylvania. Therefore, even though the Board was acting as a trustee, its refusal to admit Foust and Felder to the college because they were Negroes was discrimination by the State. Such discrimination is forbidden by the 14th amendment. Brown v. Board of Education, 347 U.S. 483.
It should be noted that under the terms of the trust the city was named trustee and given the entire management and control of the college. Thus, the case presented no question as to the degree of State control essential to constitute State action within the meaning of the 14th amendment.
Supreme Court pronouncements concerning equal protection of the laws in public schools and the rules governing their implementation in the cases discussed above can be summarized as follows:
1. State-imposed racial segregation in public educational facilities creates inequality and therefore constitutes a denial of equal protection of the laws under the Constitution. All schools in which a State participates through any arrangement, management, funds, or property are subject to this rule. All provisions of Federal, State, or local law requiring or permitting racial segregation in public schools are void.
2. All school authorities operating segregated school systems have a duty to make a prompt and reasonable effort in good faith to comply with the Constitution. The primary responsibility for elucidating, assessing, and solving the problems of desegregation rests with the local school authorities.
3. In many locations this duty would require immediate general admission of Negro children. In others justification for not requiring immediate general admission of all qualified Negro children may exist. Hostility to racial desegregation is, however, not a ground for delay.
4. If immediate general admission of all qualified Negro children is not required, the desegregation program must: (a) point toward complete compliance at the earliest possible date; and (b) be in effect before additional time may be granted. “The burden rests upon the defendants to establish that such time is necessary
5. In fixing the limits of the transitional period for the complete effectiveness of a desegregation plan the courts may consider problems related to administration arising from: (a) the physical condition of the school plant; (b) the school transportation system; (c) the school personnel; (d) the need to revise school districts and attendance areas; and (e) the need to revise local laws and regulations.
6. A pupil placement law listing factors which are to govern the assignment of pupils without regard to race or color is not necessarily invalid and may furnish the legal machinery for orderly administration of public schools in a constitutional manner. The constitutionality of the administration of a pupil placement law is, however, a legal question distinct from the constitutionality of the law itself.
QUESTIONS ARISING FROM THE RULES
Although the rules summarized above seem reasonably clear, they leave room for debate on three general questions. First, what distinctions in admission and assignment of pupils to public schools are constitutionally