localities have been abandoned. This question is presently before a Federal district court in the Prince Edward County case.

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No court has yet ruled on the constitutionality of complete abandonment by a State of its public schools. Two States have laws permitting this; none has actually done so. On the basis of the Arkansas and Louisiana cases, it is possible that the closing of all the public schools in a State because of a threat of desegregation would constitute a denial of equal protection to those individuals willing to attend desegregated schools. They would be deprived of the opportunity to attend public schools only because of the fact of desegregation. However, the complete withdrawal of the State from public education (unrelated to a threat of desegregation) may well not fall within the scope of the equal-protection clause. All citizens would then be equally deprived of the advantages of a public function which the State has not been held to be bound to perform. The right to equality in public education, under present court decisions, arises only where the State is in fact providing some public education.

It may be, however, that public education has become so fundamentally a function of State and local government that the courts would hold the elimination of all public education by such a government to be a denial of due process of law. The Federal district court in the St. Helena case has posed the question in just these terms, and has invited the Attorney General of the United States as well as those of all the individual States to submit briefs on the issue. That case, however, was not decided on this issue.47a

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THE CUTTING OFF OF PUBLIC FUNDS

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Laws providing that State funds be withheld from schools or school districts which desegregate are similar to school-closing laws in purpose, effect, and constitutional import. As early as 1955 both Georgia and South Carolina * adopted such laws. (South Carolina also inserted a provision to that effect in its 1956 and 1960 appropriation laws." The Georgia law was repealed in the spring of 1961.51) Virginia passed a statute of this kind in 1956,52 repealed it 3 years later as a result of the Perrow Commission report. The 1957 Texas statute which provided for the withdrawal of State funds from any locality desegregating its schools without approval of the voters was given a very restrictive interpretation by the State atttorney general, who ruled that the law did not apply to districts that desegregated under court order." Similarly, in James v. Duckworth,56 a city ordinance cutting off funds

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from certain schools was voided by the court as a device for avoiding an order to desegregate those schools.

It seems clear that, as with school-closing laws, a State may not give financial support to some public schools while withholding it from others-especially if the reason is court-ordered desegregation. Application of such laws doubtless would result in the closing of the schools for, although local taxation is generally the major source of public school financing, State aid is often indispensable.

COMPULSORY ATTENDANCE LAWS

A wider form of response to the School Segregation Cases, and a farreaching one, has been the repeal or suspension of compulsory school attendance laws. South Carolina in 1955, North Carolina" and Mississippi in 1956,59 and Arkansas in 1957 amended school attendance laws to provide that no child would be required to attend a desegregated school. In 1957 Georgia empowered the Governor to suspend its compulsory attendance laws.1 In 1959, Virginia reenacted the compulsory attendance law it had repealed in 1956, but left enforcement to the local school boards and permitted parents to withdraw their children from school for a "good reason" under the "freedom of choice" program.62 Tennessee adopted a similar provision in 1959.6

In Louisiana, acts repealing the compulsory attendance law were held to be part of a scheme for evading desegregation, and thus invalid." None of the other laws have been ruled on by the courts, and all are in effect.

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Compulsory school attendance laws were the Nation's answer to the movement of young children out of the schoolroom and into the factory during the rapid growth of industry in the 19th century. Massachusetts led the way in 1852. By 1900, 32 of the then 45 States of the Union had enacted such laws, including 2 of the Southern States. After Mississippi adopted its school attendance law in 1918 68 and until 1955, every healthy, normal American child was required to attend school for certain years of his life. The constitutionality of these laws was challenged unsuccessfully. The most common age span covered is 7 to 16,70 but completion of high school (usually at age 17 or 18) is now considered minimal preparation for employment.

No comprehensive study as to the effect of the repeal of attendance laws on early school dropout appears to have been made, but isolated reports suggest it may be great. School superintendents in Virginia voiced concern at the close of the 1959-60 school year. Of the 130

school districts in Virginia, only 27 have adopted a local attendance law as permitted by State law. Prince William County, one of the 103 school districts which had not adopted a local school attendance ordinance, was reported to have had 130 students under 16 drop out of school and 225 others attending irregularly in 1959-60." Its total school-age population (7 to 16 years) is 8,454." The board of supervisors, however, on July 20, 1961 approved the adoption of a compulsory attendance law for the 1961-62 school year.72 Page County reported 123 dropouts during the same period," most of them 11- to 15-year-olds. Page County has 3,077 children in this age group.

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TUITION GRANTS AND PRIVATE SCHOOLS

All States that have taken measures to withdraw from public education have provided financial support for the education of their residents in some other way. A common device is tuition grants, drawn from State or local funds or both, to allow residents to attend any school (including, of course, private schools) of their choice. Statutes establishing tuition grant plans were enacted first in Georgia (in conjunction with schoolclosing laws), then in North Carolina (1956), Louisiana (1958), ana Arkansas (1959).75 Alabama authorized a plan after repealing the constitutional obligation to provide free public education." Virginia enacted its first tuition grants law in 1956," amending it in 1959 and 1960 to conform to the new "freedom of choice" policy." Georgia adopted the Virginia freedom of choice pattern in 1961.79

Financing of educational grants is provided in some cases directly at the State level, in others only at the local level, and in still others by appropriation of both State and local funds. Some States have added further legislation to help private educational institutions indirectly, the aid taking such forms as tax deductions or credits for donations made to such institutions,80 extension of State retirement benefits to teachers employed by private schools,81 and even reimbursement for transportation expenses of pupils attending the school.82 One State has gone so far as to permit teachers educated at State teachers colleges to satisfy their statutory obligation to teach in the State public school for a given length of time by performing the same service at a private institution.83

The tuition grant laws of Alabama, North Carolina, Arkansas,84 Georgia, and Louisiana have not yet been put into operation. In Louisiana, the St. Bernard Parish school board was forced to finance a private school established for white children (who were boycotting the two desegregated elementary schools in New Orleans) because no State

funds were available. The school board later contended that the expenditure should be borne by the State, and the State earmarked $300,000 in 1961 for that purpose.86 Louisiana has made tuition grants available as of July 1, 1961, by transferring $2.5 million from sales tax revenue in the State welfare fund to the education expense grant fund, and has provided for an additional monthly allocation to that fund of $250,000 from sales tax revenue.87

Only Virginia has put the tuition grant system into effect as a substitute for public education. It was first used after the closing of public schools in Norfolk, Charlottesville, and Front Royal in 1958, but its most extensive use has been in Prince Edward County beginning with the 1960-61 school year. Since this is the only available example of the system at work, it will be helpful to investigate more closely its operation there.

CLOSED SCHOOLS AND TUITION GRANTS

The Gray Commission, appointed by the Governor to study the effect the School Segregation Cases would have on public education in Virginia, felt that it might become necessary to close the public schools, and recommended certain laws in anticipation of that possibility. Among other things, it proposed an amendment of a section of the Virginia Constitution which expressly prohibited any disbursement of public funds to educational institutions not owned or exclusively controlled by the State.88 A constitutional convention carried out its recommendation with an amendment permitting the general assembly to appropriate funds for the education of students at nonsectarian private schools. This was the foundation for a series of tuition grant laws adopted by the legislature at the 1956 extra session.89

Under these statutes the pupils of public schools in Norfolk, Charlottesville, and Front Royal, closed by the Governor's order during the first term of the 1958–59 school year, received tuition grants.

In 1959, when Virginia's policy shifted from massive resistance to "freedom of choice," the existing tuition grant laws were repealed and replaced by new laws which make no reference to desegregation of schools. The new laws did not explicitly establish a system of local option for the abandonment of public schools, but a number of powers relating to schools were delegated to local authorities. These included power to compel or suspend compulsory school attendance requirements; to make appropriations for public school on a month-to-month basis (i.e., to permit the closing of schools at any time); 90 to spend funds for private education of children through tuition grants to the parents (not to the

schools attended); to permit taxpayers to deduct contributions to nonsectarian private schools from real and personal property taxes; and to provide transportation at State expense for children attending nonsectarian private schools.

Selection of the school was left entirely to parents, and grants were available to students attending public or private schools, segregated or desegregated, as long as they were accredited by the State board of education. The board was specifically directed to promulgate rules and regulations prescribing "minimum academic standards that shall be met by any nonsectarian private school attended by a child to entitle such child to a scholarship," but could not deal with school admission requirements.

The closing of public schools in Norfolk, Charlottesville, and Front Royal in the fall of 1958 was but a prologue to the complete closing of all the schools in Prince Edward County the following year, but there were implications of sufficient importance in each area to deserve examination.

Norfolk. Six secondary schools in Norfolk were closed by the Governor's order in September 1958. Of the 10,000 children attending the high schools at the time, approximately 5,000 received some sort of makeshift tutoring in groups organized by public school teachers." A private school, the Tidewater Academy, was established for grades 7 through 12, but it failed to gain the community support such schools received elsewhere, probably because of the cosmopolitan nature of Norfolk and, more important, the refusal of public school teachers to take part in the venture. The academy continued in operation after the public high schools were reopened in February 1959 and is still in business (though with substantially diminished enrollment).92 A substantial number of tuition grants have been approved by the Norfolk school board, and it has been estimated that a new high of $365,000 will be disbursed for this purpose in 1961-62.93

Charlottesville.-Pupils from two public schools in Charlottesville closed by Governor's order in September 1958 received instruction in emergency quarters, mostly by teachers from the closed schools (who continued to be paid by the local school board). The public schools reopened with permission of the court on a segregated basis in February of 1959 and on a desegregated basis the following September.

Mr. Fendall R. Ellis, superintendent of schools, testified at the Commission's Gatlinburg conference that approximately 450 children withdrew from public school and enrolled at 2 new all-white private schools in the community. (The two schools, the Robert E. Lee Elementary School, and Rock Hill Academy, a high school, enrolled 200 to 300 pupils each in the school year 1959-60.) On the subject of finances, Mr. Ellis said: 94