127

the public schools are gone." He noted other possible problems. Public school teachers must be certified by the State; private school teachers need not. Public schools offer special services to children with handicaps or special talents and abilities; private schools with a smaller geographic spread cannot do so.128 Further, the variety of programs offered in private schools must of necessity be more restrictive.

One of the less obvious dangers of a private school system, Dr. Green explained, was the opportunity for individuals and small groups to impose their personal ideas and prejudices upon the school. The protection now offered by State supervision against such action is far from complete, but even this would be lost. He said: 129

It is not pleasant to contemplate the manner in which various groups will try to get these private schools to indoctrinate children with their own particular brands of religious, political, social, and economic beliefs. In contrast to the present situation, parents will have no recourse if school policies are objectionable or harmful. Schools will be crowded, hard to find, harder to get into, and the good ones will be very expensive. In most cases parents will have to take what they can get, and like it.

People from all sections of the South are showing increasing concern about the future of public education. When the public high schools in Little Rock, Ark., were closed, a group of citizens who preferred desegregated schools to none at all organized a committee to support public schools.130 A Little Rock newspaper which had formerly supported Governor Faubus' policies endorsed the committee.131 When public schools were threatened in New Orleans, La., similar groups were formed,132 and in Georgia citizens' groups played a vital role in passing laws that allow school districts to decide for themselves whether or not to maintain public education.133 It is noteworthy that groups such as these are not concerned with the merits of the School Segregation Cases; their only concern is the survival of public education.

Tuition grants threaten the quality of public education, even its existence. Without such laws, private schools, insofar as they are a substitute for public schools, could not long exist. In Virginia the new private schools for whites are almost wholly supported by tuition grants,134 and in Little Rock without such aid they soon disappeared.135 Tuition grant laws in operation have produced such situations as private schools for one race and public schools for both (as in Charlottesville, Norfolk, and Warren County), or private schools for one race, none for the other (as in Prince Edward County).

Public schools lose the revenue siphoned off to private schools. Mr. Gasque of Warren County, Va., reported that the loss of State funds to

public schools because of tuition grants and diminished enrollment is substantial,136 and the Arlington County Board of Education complained bitterly of the tuition grant law in 1961.137

The director of administration and finance for the State Department of Education of Virginia reported that during the 1960-61 school year, 8,127 pupils in Virginia received tuition grants, an increase of 3,359 over the previous school year. (About 40 percent of the increase was for attendance at the Prince Edward County Foundation schools.) The cost of the grants to the taxpayers was $1,755,543, or about $700,000 over the previous year. Of this total, $1,014,582 came from State funds and $740,961 from local funds, the increase from the preceding year being about $550,000 in State funds and $160,000 in local funds. 138

CONCLUSION

The threat to popular education posed by the closing of public schools, State support of private schools, and reduced State aid to public schools under "freedom of choice," has been discussed. Both practical and constitutional questions arise out of the State laws creating this threat. The practical questions can be resolved into one: Can private schools to serve all children-the nonacademic child as well as the academically talented, the poor as well as the rich-be substituted for a system of public schools without sacrificing educational standards or the educational welfare of at least some children? The constitutional questions are three: (1) May a political subdivision of a State withdraw from public education while others continue to operate public schools? 138a (2) What amount of State management, control, or support is required before a private school becomes an instrumentality of the State for the purpose of invoking the 14th amendment? (3) When do actions taken to avoid desegregation of schools become evasion of the law of the land? 138b

Some of these constitutional questions were decided in the litigation pending in the Federal courts as to the closed schools of Prince Edward County, Va., and the threatened closing of schools in St. Helena Parish, La.

These questions involve the exercise of State power in an area long recognized as entirely within the domain of the States. In November 1960, the Supreme Court had occasion to speak on the exercise of a similar State power with relation to rights protected by the Constitution: 139

When a State exercises power wholly within the domain of State interest, it is insulated from Federal judicial review. But such insulation is not carried over when State power is used as an instrument for circumventing a federally protected right. This principle has had many applications. It has long been recognized in cases which have prohibited a State from exploiting a power acknowledged to be absolute in an isolated context to justify the imposition of an "unconstitutional condition."

7. Segregation North and West

2

At least until 1954 State and local law required separate public schools for Negroes in the South. With rare exceptions such segregation as there has been in the North and West has been a matter of practice 3 without explicit legal sanction. In some instances, nonetheless, official action has contributed to or caused segregation. Where this is true, a denial of equal protection may exist.

4

Where segregation is explicitly imposed by law, as in the South, the State action necessary to invoke the 14th amendment is clear. The problem there, as discussed above, is simply to find the best ways to accomplish desegregation. In the Northern and Western States the question is whether segregation results from such State action as will invoke the 14th amendment.

5

In its 1959 Report, the Commission said: "

Concentration of colored Americans in restricted areas of most major cities produces a high degree of school segregation even in communities accepting the Supreme Court's decision. With the migration of Negroes and Puerto Ricans to the North and the West, and an influx of Mexicans into the West and Southwest, the whole country is now sharing the problem and the responsibilities.

This migration has continued. The 1960 census lists five cities in the North and West, each with more Negro residents than any southern city where separate public schools for white and Negro children were required by law in 1954. Indeed, only 9 of the 25 largest cities in the United States in 1960 lie in the South and 3 of them have completely desegregated their school systems since 1954.

8

Public schools enrolling Negroes almost exclusively in some cases, and whites almost exclusively in others, are found in many cities throughout the North and West. Although official reports are few due to a policy of not recording the race, religion, or national origin of pupils, the facts are clear. Three cities, where attempts are being made to change the existing pattern, have frankly reported their findings as to segregation. A 1960 report of the board of education of New York City' reported

that about one-fifth of the New York City elementary and junior high schools enrolled 85 percent or more Negro and Puerto Rican pupils, while 48 percent of the elementary and 44 percent of the junior high schools enrolled 85 percent or more white pupils. Philadelphia reported that 14 percent of its schools had an enrollment of 99+ percent Negro.10 In Pittsburgh in 1959, half of the Negro children in public schools attended schools which had 80 percent or more Negro enrollment. Sixty percent of all white children in public elementary schools and 35 percent of those in public secondary schools attended schools which had less than 5 percent Negro enrollment."

At its California hearings, the Commission heard of minority-group concentration exceeding 85 percent in the public schools of Los Angeles, Pasadena, Compton, Monrovia, Enterprize, and Willowbrook.12 Similarly, "overwhelming Mexican-American student enrollment" was said to exist in 34 elementary schools in East Los Angeles." In describing the San Francisco program of districting elementary schools so that children may attend schools within reasonable walking distance of their homes, the superintendent said: "Naturally, a number of schools are predominantly of one race or another, reflecting the racial characteristics of that immediate neighborhood . . . An official report on the Berkeley, Calif., system shows that two of its elementary schools have a Negro enrollment in excess of 90 percent.15

14

Testimony at the Commission's Detroit hearings revealed that the 28 elementary schools in that city's Center District have an almost entirely Negro enrollment.16 Other nonsouthern cities with high racial concentrations in public schools include Boston, Chicago, Indianapolis, and Cleveland and Youngstown, Ohio." There are, no doubt, many others.

Segregation in the public schools of the urban North and West results to a large extent from the familiar system of neighborhood schools in combination with residential concentrations of minority groups. These "ghettos" were not explicity created by law. They arose largely because of the inability of minority-group members to find housing elsewhere.18 That is why the resulting segregation in schools is generally called de facto, to distinguish it from de jure, segregation.'

19

Of course only the latter is unconstitutional. For, as already indicated,20 the 14th amendment prohibits only such racial segregation as is imposed by governmental action (or inaction in the face of a legal duty to act). Thus, the de facto segregation that results from free private choice, or from residential patterns based on purely private discrimination is apparently not forbidden.

School authorities, usually the board of education or the superintendent of schools, designate the particular public school each child shall attend. This power is generally exercised by establishing attendance zones. Transfers to schools, other than those so assigned, are officially controlled. The sites of new schools ordinarily are selected