The financing of these private schools has been done by means of donations and by means of State pupil scholarships provided by the legislature. The buildings have been constructed with privately donated funds from people in the community who feel strongly on this school issue. The operation of the schools is paid for primarily by tuition grants, which amount to $234 per pupil, $155 of that being borne by the locality and the rest by the State.

In his written statement for the conference, Mr. Ellis reported that in the 1959-60 school year the school board had processed and paid 611 tuition grants up to March and expected to pay a total of approximately 650 grants by the end of the year. Of these, 463 grants were paid to parents of pupils attending the 2 new private schools and 148 to parents of children attending other private or public schools.95

Warren County.—When the Warren County High School was closed in the fall of 1958, about 820 of the 1,050 former students enrolled in a private high school which was established for white children. Another estimated 100 attended public schools outside the county and about 125 attended no school at all." Twenty-six teachers from the public high school are reported to have transferred to the private school with special permission from the Governor." The public high school reopened in February 1959 with only 22 students (all Negroes) enrolled, but in September about 400 white students also began attending." Also in September 1959, the John S. Mosby Academy (an all-white private high school) was organized to replace the temporary school established the year before." Parents of the academy's students received a $220 tuition grant, of which $133 was paid by the county and $87 by the State. In the fall of 1960 the grant was increased to $275 per student, made up of $150 from State funds, $119 from county educational funds, and $6 from county general funds.100

Mr. Q. D. Gasque, Superintendent of Schools of Warren County, testified at the Commission's Williamsburg conference that the total cost of all scholarship grants for 1960-61 would be approximately $75,000 from State funds and $69,000 from county funds. The tuition grant in this case, also, does not completely cover school cost, each parent having to pay approximately $15 a year from his own pocket.101

Prince Edward County.-This rural county of southern Virginia has been without public schools since the county board of supervisors failed to appropriate funds for operation of public schools in June 1959. Most of the 1,700 Negro pupils (who constituted 52 percent of the public school enrollment before closing) have received no formal education since that time.102

In July 1959 about 1,220 white students (of the approximately 1,600 previously attending public schools) enrolled in the Prince Edward School Foundation (a private institution). Of the 70 white public

104

school teachers, 59 transferred to the private school retaining their retirement privileges under State law. During the 1959-60 school year the Prince Edward Foundation's expenses were met exclusively with voluntary contributions.103 (Elimination of all educational expenditures by the county brought about a reduction in real estate tax rate from $3.30 to $1.50 which helped make contributions possible.) During the following school year the county made tuition grants available and, under the authority of a new Virginia law, authorized a credit against real estate and personal property taxes for contributions made to the school.105 The county also provides reimbursement up to $35 per year for transportation of each child living over one-half mile from the school to the parents of children attending the school.106 order to provide funds for the county's share of tuition grants, the board of supervisors raised the tax rate for fiscal 1961 to $3.90, an increase of 60 cents over fiscal 1959, the last year that public schools were open.

107

During the 1960-61 school year a total of 1,325 tuition grants was approved by the school board-all for children attending the foundation's schools. 108 These grants were $225 for elementary and $250 for high school pupils, compared with tuition charges of $240 and $265, hence parents paid only $15 a child per year.109 The excess of tuition charges over grants was $32,265, or some $24,600 less than the total contributions to the foundation of $56,866.22. Altogether, 96 percent of the pupils enrolled in the foundation's schools received tuition grants the total amount of which represented 91 percent of the foundation's This governmental support, though indirect, is extensive. There is no apparent State control of the foundation, but it must be noted that under State law a private school must be approved by the State board of education and conform academically to its rules and regulations if its students are to qualify for grants. In addition, the participation by teachers in such schools in the State retirement system requires the adoption of a resolution by the school's governing body and the approval of that resolution by the board of trustees of the Virginia supplemental retirement system.'

revenue.

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CONSTITUTIONALITY OF TUITION GRANTS

As was pointed out above, the tuition grant system was one of the devices aimed at removing the State from the business of providing education sufficiently to avoid the requirements of the 14th amendment. Yet, as shown by its operation in Prince Edward County, State and local funds

and other forms of governmental participation play an important role in the system. This was recognized recently by the Federal district court in the Prince Edward County case.113

There have been rulings in earlier cases on the subject of what degree of management, financial assistance and/or control of a private institution by the State is required to make the institution a representative of the State for 14th-amendment purposes. Specifically in the field of school desegregation, the Supreme Court of the United States in Cooper v. Aaron declared that 114_

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.

The question whether public management of a privately financed institution constituted State action for 14th-amendment purposes was before the Supreme Court in 1957 in the Girard College case.115 The Court held that if a school financed exclusively by a private testamentary trust was administered by a public agency, the denial of admission to a Negro on the ground of race was State action subject to the equal protection clause of the 14th amendment. When private citizens were later substituted for the public agency, the Pennsylvania Supreme Court found that State participation had been eliminated.116

Whether payment of public funds to privately managed educational corporations would amount to "State action" was decided by the Federal courts as early as 1945. In Kerr v. Enoch Pratt Free Library," private corporation that maintained a school for librarians and received large annual grants from the city of Baltimore, was enjoined from refusing admission to a Negro student. Its action was deemed to be State action principally because of the substantial municipal support it received. The U.S. Court of Appeals for the Fourth Circuit stated:

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Even if we should lay aside the approval and authority given by the State to the library at its very beginning, we should find in the present relationship between them so great a degree of control over the activities and existence of the library on the part of the State that it would be unrealistic to speak of it as a corporation entirely devoid of governmental character. . . . How then can the well known policy of the library . be justified as solely the act of a private organization when the State, through the municipality, continues to supply it with the means of existence.

In Norris v. Mayor and City Council of Baltimore,119 a district court in the same circuit 3 years later rejected the contention that a private

art school [the Maryland Institute] which received State and city funds in the form of tuition scholarships was an agent of the State and subject to the restrictions of the 14th amendment. In distinguishing that case from the Enoch Pratt decision, the court stressed the fact that the library in that case received 99 percent of its annual budget from the city, while in the case before it the total public funds for scholarships was only 23 percent of the school's revenue.120

Appendix table 4 compares the public support and control present in the Prince Edward case with three earlier cases.121

IMPLICATIONS

In his written statement submitted for the Commission's Williamsburg conference, Mr. Gasque, Superintendent of Schools of Warren County, Va., described the effect of closed schools in that county:

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It is difficult to evaluate, even in general terms, what effect the closing of Warren County High School had on the academic achievement of its students. . . . For those students of aboveaverage ability the effects of a disorganized academic year were quickly dispelled once the public school was reopened; for those students of lesser ability the loss may never be regained. Some students dropped out of school in despair because they could not comprehend the emotional conflict that permeated the entire community in which they lived. Others withdrew from the community entirely and enrolled in schools in surrounding areas. Discipline reached a low ebb when the close supervision of an organized program within the confines of a single building was suddenly nonexistent. The traditions that are so much the part of a community high school could not be transplanted into a makeshift situation; a heritage covering many decades was lost to posterity.

Another immediate result of closed public schools has been the establishment of hastily organized private schools which could not compare in quality, for a number of years at least, with the public school system they purported to replace. As Mr. Gasque told the Commission: 123

I would like to point out here something that is well known to everyone who has had any connection with public schools-that it takes a long time to really get a school organized and a still longer time to buy proper equipment. I think that that is a fact which

should be kept in mind when we speak frankly of the poorer facilities that a number of private schools will be able to offer for some time.

Dr. Donald R. Green of Emory University, Georgia, in a prepared statement for the Commission's Williamsburg conference, stressed the difficulties inherent in a plan to substitute private schools for the public school system:

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... The residents of most Southern States face a tremendous task if they wish to build a set of private nonsectarian schools parallel to the public school system. Good private schools are not only expensive but take time to develop. In short it is doubtful that any move to expand the number of private schools will be able to eliminate the distress of more than a handful of those opposed to desegregation. . . .

Private schools have an important role to play in the educational system of the country, and for the most part they have played it well. . . . But this role in no way can be said to include . . . any real possibility that the replacement of public schools with private schools would adequately meet the needs of the county, State, or locality. . . .

Private schools typically offer a single program suited to the needs of some children. As long as they enroll only such children, they can make a valuable contribution. If private schools are to serve all children, they must broaden their program substantially, an expensive undertaking.

In Dr. Green's opinion, a system of private schools cannot compete with a public system of schools either in cost or quality of instruction. He noted the high tuition rates in established private schools of good quality as well as hidden costs in the form of special assessments, donation requests, and other charges. Even more important, perhaps, would be the loss of Federal aid for vocational education, school construction, and libraries.125

Even if the financial problem could be overcome (and he feels this is doubtful), he believes it is "unlikely that the education offered by an all-private set of schools would meet [even] the somewhat less than ideal standards our public schools now maintain." 126 Dr. Green conceded that private schools are superior to public schools in many instances. He suggested, however, that the continued presence and competition of the public schools might have been a substantial factor in forcing private schools to maintain their higher standards; that if this were the case there is a dangerous possibility of deterioration of these standards once