If initial assignments by race subject only to the right to transfer are not constitutionally acceptable, how can a gradual implementation of a pupil placement plan be achieved? Application of the law each year to all new pupils (kindergarteners or first graders, new residents, graduates from elementary school or junior high) is one possibility. A gradea-year is another. Do either or both meet the requirements of deliberate speed? If such a transition period is approved, to what extent, if any, may race be a basis of pupil assignment during the transition?

In following chapters answers to these questions as they now appear will be discussed. In chapter 3, those that arise in the desegregation of a school system will be analyzed in the light of Supreme Court pronouncements and lower court decisions. These are, of course, suits brought in Southern States seeking desegregation or challenging the method of carrying it out. Questions relating to indirect State support of private segregated schools and the closing of public schools will be covered in chapter 6. Some of the questions posed are more applicable at the present time in the North and the West than in the South. These will be taken up in chapter 7.

3. The Law of Desegregation

Paraphrasing the Supreme Court's rules governing school desegregation is much simpler than applying them. Seven years of litigation has not brought uniformity among lower court decisions as to what does, and what does not, satisfy constitutional requirements. Part of the difficulty may arise from the fact that some lower courts have not recognized that each desegregation plan raises three interrelated questions. First, does it provide for a prompt and reasonable start in good faith toward full compliance? Second, if carried out completely will it result in a racially nondiscriminatory operation of the school system? Third, does the time schedule for complete execution of the plan meet the test of all deliberate speed? Only affirmative answers to all three questions appear to meet the rules laid down by the Supreme Court. This chapter sets forth the answers to these questions found in lower court decisions. They will be analyzed in the light of the pronouncements of the Supreme Court in an attempt to delineate the law of desegregation.

PROMPT AND REASONABLE START

In the first years after the School Segregation Cases in 1954, lower courts took a tolerant view of what constituted "a prompt and reasonable start" toward good-faith compliance. The formation of a citizens' committee to study the problems of desegregation, or study and planning by a school board, was held to be such a start.1

Now it is clear that such gestures are not enough. In the Little Rock case, decided in the fall of 1958, the Supreme Court emphasized that State authorities, including local school boards, are "duty bound to devote every effort toward initiating desegregation and bringing about the elimination of racial discrimination in the public school system.”

As the Court put it in Bolling v. Sharpe, ". . . the equal protection clause of the 14th amendment prohibits the States from maintaining racially segregated public schools." "

In Brewer v. Hoxie School District, the Court of Appeals for the Eighth Circuit recognized the legal duty of the school board to act even though it was not under court order to do so:

The principles enunciated by the Supreme Court in the School Segregation cases are binding upon plaintiffs in this case, as well as on all other school boards or school officials administering public education programs. For in practical effect, the rights and duties of not only the immediate parties to the cases before the Supreme Court were at issue but also the rights and duties of all others similarly situated.

A plan for a prompt and reasonable start apparently is no longer enough. The test of whether or not a plan is in "good faith" is action, not words. Furthermore the "good faith" demanded is objective, not subjective. Immediately after the Supreme Court's decision in the Little Rock case, a Federal district court instructed a school board as to the "good faith" required of it.

the Supreme Court did not intend that the "good faith" to be exercised by school authorities should be confined solely to what you honestly and sincerely may believe is for the best interest of the child, the children in the affected school, and the public in general.

At no time has the Supreme Court used the words "good faith" as we would ordinarily interpret the same, and, you will observe, the granting of additional time presupposes that a prompt and reasonable start toward full compliance has been made.

In the Dollarway case (1960) a Federal district court had upheld a desegregation plan based on the Arkansas placement law and a general policy against transfer of pupils already enrolled in school. It said this plan would give at least some Negro first-graders a reasonable chance of being assigned to a white elementary school." But the Eighth Circuit reversed the decision, saying:

8

after a lapse of 6 years, we think a board should be required to come forth with something more objectively indicative as a program of aim and action than a speculative possibility wrapped in dissuasive qualifications.

It appears that good faith now requires action; unimplemented plans no longer meet the requirement of a prompt and reasonable start.

FULL COMPLIANCE

Three basic types of plan for implementing desegregation have emerged: (1) free choice of school (all schools in the system are open to any eligible pupil without regard to race or residence); (2) rezoning of attendance areas for all schools, white and Negro (all pupils living within a delineated area are automatically assigned to the school therein); (3) individual pupil assignment (each pupil is judged by established criteria and assigned to the school found to be appropriate).

Free choice of school

Baltimore is the only city known to have adopted the free choice of school method as a means of abandoning segregated schools, but even Baltimore's plan includes elements of rezoning and pupil assignment. Only two limitations are placed on the pupil's free choice of school: First, where there are overcrowded schools, attendance is limited to residents of the neighborhood-a limitation removed as soon as the crowded condition is relieved; second, there are certain special-purpose schools with scholastic admission requirements. In the absence of gerrymander of attendance zones, or discriminatory administration of admission requirements for the special-purpose schools, neither of which is suggested to exist in Baltimore, these two variations on the free-choice-of-school plan, like the plan itself, seem constitutionally sound.

The Baltimore desegregation was initiated throughout the city in September 1954; its impact has been considerable. In October 1954, there were 53 schools attended by whites only, 61 attended by Negroes only, and 49 in which both white and Negro pupils were enrolled. In other words there were 114, or 69 percent, of all schools attended only by white or Negroes. Six years later there were 100 schools attended only by whites or Negroes and 93 biracial schools. 10 The percentage of all schools attended by members of one race had dropped to 52. Does the fact that this kind of racial segregation persists in over 50 percent of the schools after 6 years of desegregation make the free-choice-of-school plan constitutionally vulnerable? It would seem not. The persistence of segregation under any plan certainly may place the burden on the school authorities to prove that all of their administrative practices are in fact nondiscriminatory; but, as many courts have said,11 a free, private choice of segregation does not violate the Constitution. In Baltimore most pupils choose to attend the school in the neighborhood of their homes and, therefore, to a large extent the enrollment of the schools reflects residential patterns. Since there is no legal compulsion in their choice of schools, no constitutional question as to the desegregation plan

11

seems to arise. The cost of public transportation may be a deterring factor in the choice of a school outside of the pupil's residential area, but no court has said that school authorities are obliged to provide transportation for out-of-zone pupils. When a school system offers free transportation, it must do so without regard to race, but race alone would not appear to entitle one to free transportation. Therefore, although there has been no legal test of the constitutionality of the Baltimore free-choice method of desegregation, it appears to be constitutionally valid.

Several school systems have attempted unsuccessfully to get court approval of desegregation plans offering a choice between racially segregated and biracial schools. Such attempts have relied on the proposition that segregation by choice is constitutionally acceptable. The first such plan was rejected by a Federal district court in Kelley v. Board of Education of Nashville,12 on the ground that a choice between a segregated and nonsegregated school was merely a preliminary step to the establishment of schools based on racial distinctions-white as well as Negro pupils would be barred from some schools on the basis of race alone. The doctrine of the School Segregation cases, the court held, applies to individual schools as well as school systems: ". . . discrimination is clearly not eliminated by maintaining and operating some schools in the system on a racially segregated basis and others with the discrimination removed." >> 13 The plan could not meet the test of constitutionality because, when fully effective, racial discrimination would still exist.

99 15

Recently two similar plans have been rejected. A Federal district court in Ross v. Peterson (the Houston case), rejected the Houston School Board's "salt and pepper" plan as "a palpable sham and subterfuge designed only to accomplish further evasion and delay." This plan called for the opening to 1 high school, I junior high school, and I elementary school (out of a total 173 schools) to voluntary enrollment by both whites and Negroes. The particular schools to be opened to biracial enrollment were to be selected by a study of the results of a referendum on the question of desegregating schools.

In Borders v. Rippy,16 a "salt and pepper" plan, presented by the Dallas School Board at the urging of the Federal district court, was approved, but struck down on appeal." Like the Houston plan, it provided for separating and grouping schools into white, Negro, and mixed. It also provided for canvassing parents and pupils to ascertain their preferences. The U.S. Court of Appeals for the Fifth Circuit observed that the "plan evidences a total misconception of the nature of the constitutional rights" 18 of the plaintiffs: 19

Negro children have no constitutional right to the attendance of white children with them in the public schools. Their constitu