The pattern of assignment of teachers to school can seriously subject students to discrimination on the ground of race, such as in a case where teachers with Class "A" teaching certificates were assigned only to white or predominantly white schools. The discrimination affecting Negro students in all-Negro schools that would result from such a policy would obviously be contrary to § 601. Even if the provision later added by § 604 were considered to be not internally ambiguous, in spite of its broad but undefined term “employment practice," this provision is certainly in conflict with § 601. To read the two provisions harmoniously, the pertinent legislative history must be consulted. Accordingly, § 604 can only be understood by reference to the Attorney General's letter and other relevant portions of the legislative history of § 604 discussed above. And § 601 must be read in the light of the statements made prior to the addition of § 604, and at the time it was introduced, showing that § 601 had been expressly understood to extend to the racial allocation of faculty in the public schools affecting educational opportunities of students, and that the later amendments were not considered to make changes of substance in Title VI. See the discussion on page 6 above. In cases such as this, the well-settled principles of statutory construction apply. Where there is ambiguity in a statute, especially in highly remedial legislation such as the Civil Rights Act, a limiting proviso like § 604 must be read in such a way as to avoid defeating the primary purpose of the Act. Miller v. Robertson, 266 U.S. 243, 248 (1924); cf. Phillips Petroleum Co. v. Wisconsin, 347 U.S. 672 (1954); Interstate Gas Co. v. Power Commission, 331 U.S. 682, 691 (1947); United States v. Scharton, 285 U.S. 518 (1932). The only court that has so far specifically considered the applicability of § 604 is the Fifth Circuit in the Jefferson County case (now being reheard). The conclusion reached in the December 29, 1966 opinion was the same as in this memorandum. No court has reached the Senator's conclusion. MARCH 2, 1967. Hon. RUSSELL B. LONG, Chairman, Finance Committee, DEAR SENATOR LONG: During the course of Secretary Gardner's testimony before your Committee on February 23, 1967, you raised the question whether the Supreme Court's decision in the Brown case requires the desegregation of a public school faculty in which teachers have previously been assigned on a racial basis as part of a dual racial public school system. You asked that this Department furnish the Committee a memorandum discussing the case law in this area. The case law, I believe, clearly imposes on public school authorities the affirmative, constitutional duty to desegregate their faculties so that the rights of pupils to the "equal protection of the laws" under the Fourteenth Amendment will no longer be denied. In 1954 the Supreme Court of the United States declared that the segregation of public school students according to race violates the Fourteenth Amendment. Brown v. Board of Education, 347 U.S. 483 (1954). A year later, the Court, in determining how judicial relief could best be fashioned, mentioned the problem of reallocating staff as one of the reasons for permitting the desegregation process to proceed with "all deliberate speed." Brown v. Board of Education, 349 U.S. 294, 301 (1955). Two cases decided by the Supreme Court in late 1965 indicate that school boards may no longer postpone the responsibility owed their students of desegregating faculty. In Bradley v. School Board of Richmond, Virgina, 382 U.S. 103 (1965), the Court took the view that faculty segregation had a direct impact on a desegregation plan, and that it was improper for the trial court to approve a desegregation plan without inquiring into the matter of faculty segregation. In reaching this conclusion the Court, in a unanimous opinion, commented that "there is no merit to the suggestion that the relation between faculty allocation on an alleged racial basis and the adequacy of the desegregation plans is entirely speculative." And in ruling that there should be no further delay in a hearing on the question of faculty desegregation, the Court further emphasized that "delays in desegregation of school systems are no longer tolerable." 382 U.S. at 105. In Rogers v. Paul, 382 U.S. 198 (1965), the Supreme Court extended the undelayed right to challenge teacher segregation to students who had not yet themselves been affected by the School Board's gradual desegregation plan. The Court stated (382 U.S. at 200): Two theories would give students not yet in desegregated grades sufficient interest to challenge racial allocation of faculty: (1) that racial allocation of faculty denies them equality of educational opportunity without regard to segregation of pupils; and (2) that it renders inadequate an otherwise constitutional pupil desegregation plan soon to be applied to their grades. Relying on the Bradley case, the Court of Appeals for the Fifth Circuit, the circuit covering the states of Alabama, Florida, Georgia, Louisiana, Mississippi and Texas, ruled in January 1966, in a suit also brought by Negro students, that it was "essential" that the plan of desegregation for Jackson, Mississippi "provide an adequate start toward elimination of race as a basis for the employment and allocation of teachers, administrators, and other personnel." Singleton v. Jackson Municipal Separate School District, 335 F. 2d 865, 870. And in a case decided in August 1966, the same Court ruled that the plan of desegregation for Mobile, Alabama "must be modified in order that there be an end to the present policy of hiring and assigning teachers according to race by the time the last of the schools are fully desegregated for the school year 1967-68." Davis v. Board of School Commissioners of Mobile County, 364 F. 2d 896, 904. The Courts of Appeals for the Fourth Circuit (Maryland, North Carolina, South Carolina, Virginia and West Virginia), the Eighth Circuit (Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota) and the Tenth Circuit (Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming) have similarly held. In a suit brought by pupils in Durham, North Carolina, the Court stated: We read the [Bradley] decision as authority for the proposition that removal of race considerations from faculty selection and allocation is, as a matter of law, an inseparable and indispensable command within the abolition of pupil segregation in public schools as pronounced in Brown v. Board of Education, supra, 347 U.S. 483. Hence no proof of the relationship between faculty allocation and pupil assignment was required here. The only factual issue is whether race was a factor entering into the employment and placement of teachers. Wheeler v. Durham City Board of Education, 363 F. 2d 738, 740 (C.A. 4, 1966). The Court in Wheeler went on to require (at p. 741): Vacant teacher positions in the future should be opened to all applicants, and each filled by the best qualified applicant regardless of race. Moreover, the order should encourage transfers at the next session by present members of the faculty to schools in which pupils are wholly or predominantly of a race other than such teacher's. A number of the faculty members have expressed a willingness to do so. Combined with the employment of new teachers regardless of race, this procedure will, within a reasonable time, effect the desegregation of the faculty. Chambers v. Hendersonville Board of Education, 364 F. 2d 189 (C.A. 4, 1966), involved the problem of Negro teachers who lost their jobs when an all Negro school was abolished. The School Board treated them as new applicants. The Court held that this was discriminatory and invalid under the Fourteenth Amendment, stating (at p. 192): First, the mandate of Brown v. Board of Education, 347 U.S. 483 (1954), forbids the consideration of race in faculty selection just as it forbids it in pupil placement. See Wheeler v. Durham City Board of Education, 346 F. 2d 768, 773 (4 Cir. 1965). Thus the reduction in the number of Negro pupils did not justify a corresponding reduction in the number of Negro teachers. Franklin v. County Board of Giles County, 360 F. 2d 325 (4 Cir. 1966). Second, the Negro school teachers were public employees who could not be discriminated against on account of their race with respect to their retention in the system. Johnson v. Branch, 364 F. 2d 177 (4 Cir. 1966), and cases therein cited. In a suit brought by pupils in El Dorado, Arkansas, the Eighth Circuit Court of Appeals recognized "the validity of the plaintiffs' complaint regarding the [School] Board's failure to integrate the teaching staff. Such discrimination is proscribed by Brown and also the Civil Rights Act of 1964 and the regulations promulgated thereunder." Kemp v. Beasley, 352 F. 2d 14, 22 (1965). The Court elaborated on this theme in Smith v. Board of Education of Morrilton, 365, F. 2d 770, 778 (1966): It is our firm conclusion that the reach of the Brown decisions, although they specifically concerned only pupil discrimination, clearly extends to the proscription of the employment and assignment of public school teachers on a racial basis. Cf. United Public Workers v. Mitchell, 330 U.S. 75, 100 (1947); Wieman v. Updegraff, 344 U.S. 183, 191-192 (1952). See Colorado Anti Discrimination Comm'n v. Continental Air Lines, Inc., 372 U.S. 714, 721 (1963). This is particularly evident from the Supreme Court's positive indications that nondiscriminatory allocation of faculty is indispensable to the validity of a desegregation plan. Bradley v. School Board of the City of Richmond, supra; Rogers v. Paul, supra. This court has already said, 'Such discrimination [failure to integrate the teaching staff] is proscribed by Brown and also the Civil Rights Act of 1964 and the regulations promulgated thereunder.' Kemp v. Beasley, supra, p. 22 of 352 F. 2d. In a recent decision of the Eighth Circuit, Clark v. Board of Education of Little Rock School District, No. 18, 368 (December 15, 1966), the Court required of the Little Rock, Arkansas School Board (slip op., p. 15) a "positive program aimed at ending in the near future the segregation of the teaching and operating staff." The Court stated (slip op., p. 13): We agree that faculty segregation encourages pupil segregation and is detrimental to achieving a constitutionally required non-racially operated school system. It is clear that the Board may not continue to operate a segregated teaching staff. Bradley v. School Board of City of Richmond, 382 U.S. 103 (1965). It is also clear that the time for delay is past. The desegregation of the teaching staff should have begun many years ago. At this point the Board is going to have to take accelerated and positive action to end discriminatory practices in staff assignment and recruitment. The Court then proceeded to outline the essential ingredients which such "action" must include (pp. 13-14): First, . . . future employment, assignment, transfer, and discharge of teachers must be free from racial consideration. Two, should the desegregation process cause the closing of schools employing individuals predominately of one race, the displaced personnel should, at the very minimum. be absorbed into vacancies appearing in the system. Smith v. Board of Education of Morrilton School District, No. 32, supra. Third, whenever possible, requests of individual staff members to transfer into minority situations should be honored by the Board. Finally, we believe the Board make all additional positive commitments necessary to bring about some measure of racial balance in the staffs of the individual schools in the very near future. The age old distinction of "white schools" and "Negro schools" must be erased. The continuation of such distinctions only perpetrates inequality of educational opportunity and places in jeopardy the effective future operation of the entire "freedom of choice" type plan. In a suit brought by pupils in Oklahoma City, Oklahoma, the Court of Appeals for the Tenth Circuit recently affirmed a lower court order requiring that by 1970 "there should be the same percentage of non-white teachers in each school as there now is in the system." Board of Education of Oklahoma City Public Schools, Independent District No. 89 v. Dowell, No. 8523 (January 23, 1967). slip op., p. 22, affirming, 244 F. Supp. 971, 977-978 (W.D. Okla. 1965). The District Court had stated (p. 978) that such a requirement provided "for stability in school faculties during the integration process, .. keying the change to personnel turnover figures indicating that approximately 15% of the total faculty is replaced each year." Although the evidence showed that there was no difference in the quality of performance between the white and non-white personnel in the school system, the Court of Appeals held (p. 22) that where "integration of personnel exists only in schools having both white and non-white pupils, with no non-white personnel employed in the central administration section of the system", there is "racial discrimination in the assignment of teachers and other personnel." Relying on the Supreme Court's decisions in Bradley and Rogers, the Court stated (p. 22) that "[t]he [lower court] order to desegregate faculty is certainly a necessary initial step in the effort to cure the evil of racial segregation in the school system." Numerous district courts, in applying the law as elucidated by the Supreme Court and the courts of appeal of their various circuits, have entered orders in school desegregation cases requiring the desegregation of faculty and staff. In entering such orders, a few of the district courts have also set forth their reasons in memorandum opinions. One such opinion was issued by the United States District Court for the Eastern District of Virginia in refusing to approve a plan submitted by the School Board of Greensville County, Virginia, on the ground that the plan must, but failed, to include a provision for the employment and assignment of staff on a nonracial basis. Wright v. County Board of Greensville County, Virginia, 252 F. Supp. 378 (E.D. Va. 1966). In holding that a faculty desegregation provision approved by the Commissioner of Education was not sufficient, the court stated (at 384): The primary responsibility for the selection of means to achieve employment and assignment of staff on a nonracial basis rests with the school board. . . Several principles must be observed by the board. Token assignments will not suffice. The elimination of a racial basis for the employment and assignment of staff must be achieved at the earliest practicable date. The plan must contain well defined procedures which will be put into effect on definite dates. The board will be allowed ninety days to submit amendments to its plan dealing with staff employment and assignment practices. The United States District Court for the Western District of Virginia, in providing for similar relief in the case of Brown v. County School Board of Frederick County, 245 F. Supp. 549, 560 (1965), said: [T]he presence of all Negro teachers in a school attended solely by Negro pupils in the past denotes that school a "colored school" just as certainly as if the words were printed across its entrance in six-inch letters. See also Kier v. County School Board of Augusta County, 249 F. Supp. 239, 247 (W.D. Va. 1966). The cases which I have reviewed establish, in my judgment, the constitutional duty of school authorities to disestablish imposed racial segregation of faculties and recognize that this obligation emanates from the principles enunciated in the Brown decision. Sincerely, RAMSEY CLARK, Deputy Attorney General. [From the Atlanta Constitution, Mar. 10, 1967] SCHOOLS GET A YEAR'S GRACE (By Eugene Patterson) While remaining firm, the U.S. Office of Education is embarking on a more conciliatory approach to encourage desegregation of lagging Georgia schools. For one thing, letters to state departments of education are in the works, inviting the states to assume more responsibilities in effecting the guidelines. Federal funds will be offered to finance increased state activity. Of more immediate significance, however, will be a notification that one Georgia county is about to get from Washington. This decision, which has already been made, will signal a major adjustment in fund cutoff policy by the Office of Education. The Georgia county in question still has segregated schools. New federal funds have been withheld from it during the current school year, pending a permanent fund cutoff hearing scheduled to be held shortly. Many Georgia counties are in this shape, so they will be interested to know what is about to happen. In return for a firm commitment volunteered by the county school system that it will undertake significant desegregation beginning next September, the Office of Education is postponing the fund cutoff hearing until next September, and is additionally releasing to the schools all of the federal funds that have been withheld from them this year. In short, a school system that has been cited as not obeying the law up to now, but which decides to comply during the next school year, may retrieve the current year's funds it has lost and delay its fund cutoff hearing by simply spelling out its intentions for the future. The intentions will have to be spelled out; the Office of Education is not accepting vague promises. The county whose funds are about to be restored laid down a detailed plan for student and faculty desegregation, affecting some 10 per cent of its Negro students. But the significance of the new federal decision lies in its show of conciliation. Counties that have done nothing to comply with the guidelines heretofore are not to be consigned ruthlessly to the outer darkness; if they want to come back into the light they'll be welcomed and helped to catch up with the other school systems, with their past lag written off. The emphasis has thus been turned more decisively to encouraging compliance rather than terminating funds. Those reluctant schools that choose to do that which they have not yet done are offered financial forgiveness for their past omissions. Justice department lawsuits impend for the outright defiant, of course, so that ultimately they will be desegregated by court order if not by the Office of Education's new encouragement. But the new policy of conciliation in place of punishment offers a way out of the woods for those Georgia school systems wishing to take it. (Reference to following material appears on page 375, Part I:) MR. JACK REED, PITTSBURGH PUBLIC SCHOOLS, Education and Labor Committee Council, Rayburn Building, Washington, D.C. DEAR MR. REED: I believe that you inquired of this office as to the effect of federal programs under the Elementary and Secondary Education Act Title I which are being extended to nonpublic schools. I think you referred to "31" programs, citing testimony before a Congressional Committee as to the origin of this quotation. I do not believe that I stated that 31 programs were extended to the nonpublic schools, but rather than we have about 31 ESEA programs in Pittsburgh, a number of which are extended to the nonpublic schools. Enclosed is a tabulation and description of these programs with those asterisked being the ones which we extend to Parochial Schools. |