act, and a 1959 amendment withholding State funds from any school so closed, to be "clearly unconstitutional under the due process and equal protection clauses of the 14th amendment." 12

Plans for the abandonment of public education in Virginia were carefully laid. In 1956 the Virginia General Assembly enacted a provision announcing the State's public policy to be one of racial segregation in the public schools, and declaring that desegregation of schools "could destroy the efficiency of the school . . . and tranquillity of the community." It directed, therefore, that whenever any school was desegregated, whether voluntarily or under compulsion of a court order, the Governor had to assume control in the name of the Commonwealth and close it.13 The Governor could reopen and return the school to the local authorities whenever it appeared that they could operate the schools in accordance with "State policy." The consent of the State to be sued for any action taken under this law was specifically withheld. Two years later the act was extended to include any public school policed by Federal military forces," and separate legislation was enacted to authorize the closing of other schools in the same district when the closing of any public school“. . . should in the opinion of the Governor, cause the peace and tranquillity of the school division in which such school is located to be disturbed. . . .” 15 In September 1958, the Governor utilized these powers to close the Warren County High School, an elementary, and a high school in Charlottesville, and six secondary schools in Norfolk, all of which were under court order to admit Negro students.

These Virginia school-closing laws were declared unconstitutional in January 1959 by a three-judge Federal district court and by the Supreme Court of Appeals of Virginia in separate suits.16 In a suit brought by the Attorney General of Virginia, the State supreme court of appeals held that the School Segregation cases invalidated the section of the State constitution which provided that white and colored children should not be taught in the same school, but did not affect the section which required the general assembly to "establish and maintain an efficient system of public free schools throughout the State." The State court found that these laws violated the latter provision, explaining:

17

. . . That [section] means that the State must support such public free schools in the State as are necessary to an efficient system, including those in which the pupils of both races are compelled to be enrolled and taught together, however unfortunate that situation may be. . . . [The school closing laws] violate(s) section 129 of the constitution in that they remove from the public school system any schools in which pupils of the two races are mixed and make no provision for their support and maintenance as a part of the system.

The Federal district court, in James v. Almond,18 approached the problem from the standpoint of the equal-protection clause of the 14th

amendment. In a suit brought by white parents, this court found that the Virginia school-closing laws of 1956 were unconstitutional not only because they "effectively require a continuance of racial discrimination," but also because the closing of schools discriminated against both white and Negro children assigned to those schools.1o

We are told that, because the schools are closed to all alike, both white and colored, there is no discrimination and hence there is no violation of the 14th amendment. This premise is totally unsound. .. Where a State or local government undertakes to provide public schools, it has the obligation to furnish such education to all in the class eligible therefor on an equal basis. . . . ... While the State of Virginia, directly or indirectly, maintains and operates a school system with the use of public funds, or participates by arrangement or otherwise in the management of such a school system, no one public school or grade in Virginia may be closed to avoid the effect of the law of the land as interpreted by the Supreme Court, while the State permits other public schools or grades to remain open at the expense of the taxpayers.

The court's comments on school closing on a local option basis are of interest in view of later laws: 20

In the event the State of Virginia withdraws from the business of educating its children, and the local governing bodies assume this responsibility, the same principles with respect to equal protection of laws would be controlling as to that particular county or city. While the county or city, directly or indirectly, maintains and operates a school system with the use of public funds, or participates by arrangement or otherwise in the management of such a school system, no one public school or grade in the county or city may be closed to avoid the effect of the law of the land while other public schools or grades remain open at the expense of the taxpayers. Such schemes or devices looking to the cut off of funds for schools or grades affected by the mixing of races, or the closing or elimination of specific grades in such schools, are evasive tactics which have no standing under the law.

The court in the above case seemed to say that in a State system of public schools, the closing of any school and the operation of others anywhere in the State is a denial of equal protection to the children locked out of the closed school; in a local system, the closing of any and the operation of others within the system, is also unconstitutional as to those excluded.

The Louisiana Legislature in 1958 gave the Governor authority to close any school in the State that was ordered to desegregate, and fur

ther to close other schools in any area where a school had been closed if their continued operation might cause disorder among the children or the citizens of that area. In 1960 the Governor was given the authority to close all schools in the State if one was desegregated 22 and, in another provision which contained no reference to school desegregation, to close any school "when the operation thereof is threatened, interfered with, or disrupted by disorder, mobs or violence." 23

These three acts, together with other Louisiana statutes, were declared void by a three-judge Federal district court on August 27, 1960.24 With regard to the three school-closing laws, the court said: 25

All these acts have as their sole purpose continued segregation in the public schools. They are but additional weapons in the arsenal of the State for use in the fight on integration. Although the right of the Governor to close schools under Act 542 of 1960 is not in terms predicated on their integration, the purpose of the act is so clear that its purpose speaks louder than its words. . . This act may be more sophisticated than Act 495 of 1960 and Act 256 of 1958, but it is no less unconstitutional.

Shortly thereafter the Louisiana Legislature in effect reenacted the laws invalidated,26 and on November 30, 1960, a three-judge Federal district court declared the new enactments unconstitutional, holding they were

27

. . carbon copies of

... all in effect school closure measures, statutes held invalid by the decision rendered August 27. The only difference, common to all four acts, is the deletion of reference to "segregation," "integration," or "separate facilities" in the earlier statutes and the substitution of the words "consistent with the constitution and laws of this State or State board of education policies, rules, or regulations." But this euphemism cannot save the legislation.

To this date no further acts have been passed in Louisiana which provide directly for the closing of desegregated public schools.

Statutes which provide for the automatic closing of schools to which Federal military forces are sent have been enacted not only in Virginia, as mentioned above, but also in Florida 28 and Texas.29

"30

In 1956 the Georgia Legislature empowered the Governor to close public schools whenever he found that they could not be operated "in such manner as shall entitle such schools under the laws of this State to State funds for their maintenance and operation. Since other laws prohibited the expenditure of State or local funds for desegregated schools,31 an intention to authorize the closing of desegregated schools seems clear. Moreover, the next year the Georgia General

Assembly conferred upon the Governor additional powers to promulgate and enforce emergency regulations for the control of "public buildings, public utilities, or any other public facility in Georgia, and . . . regulate the manner of use, the time of use, and persons using the facility during an emergency, for the purpose of maintaining peace, tranquillity, and good order in the State." 32 South Carolina adopted similar legislation.

33

That the underlying purpose was to effect the swift closing of public schools threatened with desegregation was clear to the Governor of Florida. He vetoed a similar act passed earlier by the Florida Legislature, saying:

34

...

Insofar as the public school system is concerned, I view the bill as wholly unnecessary. Under the present school code . . . the respective county boards of public instruction of the State have the express power to "adopt regulations for the closing of schools during

Another 1959 law directed the Governor of Georgia to close any public school whenever he deemed it necessary to preserve the good order, peace, and dignity of the State, and whenever necessary because of conditions resulting from "the transfer or assignment of one or more pupils to such school." The latter provision included the closing of the school which the pupil would have attended as well as the one to which he was assigned.

35

as substan

Following the same general plan of action, the States of Alabama and Mississippi delegated school-closing authority to local school boards. The Alabama statute 36 directed each board of education after public hearings to close any school if its continued operation "will be accompanied by such tensions, friction, or potential disorder tially to impair the effective standards of education or . . . peace, order, and good will in the community." The Mississippi act 37 was no more subtle, authorizing local school trustees to close any or all their public schools if "such would be to the best interest of the persons therein or to promote or preserve the public peace, order, or tranquillity of any school or school district."

Still another variant gave local option to the voters of the locality. North Carolina pioneered in this field in 1956 when the voters ratified an amendment to the State constitution authorizing the general assembly to provide for a "uniform system of local option" whereby any locality could vote to suspend the operation of its public schools.38 The legislature declared: "Our people in each community need to have a full and meaningful choice as to whether a public school, which may have some enforced mixing of the races, shall continue to be maintained and supported in that community."" Local boards of education were

given authority to call an election on the question, and thereafter to suspend the operation of one or more, or all, of the public schools under their jurisdiction.

40

Georgia and Louisiana enacted similar statutes in 1961 " establishing local option procedures for the closing and reopening of public schools in desegregation crises. The Louisiana statute was found unconstitutional by a three-judge court on August 30, 1961."

By early 1959 compulsory school-closing laws had proven vulnerable to constitutional attack in the courts. Schools in both Virginia and Arkansas were reopened after the courts struck down the laws under which they were closed; and the emphasis of subsequent legislation, by and large, shifted to new strategies of resistance." School-closing laws of the local option variety retain sufficient importance to warrant an examination of their constitutionality.

Constitutionality

The Arkansas and Louisiana school-closing laws were termed “additional weapons" in the fight to preserve segregation and invalidated as schemes to circumvent court orders.13 Most of the laws now on the books, however, are not so openly related to the avoidance of desegregation and to that extent are less vulnerable. Nonetheless, insofar as they permit the State or its instrumentalities to operate public schools in one part of the State and not in another, they appear to be within the language of the three-judge court in James v. Almond," where the court said that such action was a denial of equal protection not because of its racial implications, but because it involved discrimination between children, whatever their race, in different parts of the State. The result should be the same whether responsibility for school closing is vested in the State or in local agencies, for as the Supreme Court stated in Cooper v. Aaron: 45

The situation here is in no different posture because the members of the school board and the superintendent of schools are local officials; from the point of view of the 14th amendment, they stand in this litigation as agents of the State.

The command of the 14th amendment is that "no State . shall deny to any person within its jurisdiction the equal protection of the laws." ... Whoever, by virtue of public position under a State government . . . denies or takes away the equal protection of the laws, violates the constitutional inhibition; and as he acts in the name and for the State, and is clothed with the State's power, his act is that of the State. This must be so, or the constitutional prohibition has no meaning.

This reasoning indicates that the Constitution does not permit the operation of some public schools in a State if public schools in other