Legislative Resistance

In the past 2 years there has been a marked shift in some parts ofthe South from statewide, massive resistance to local option and freedom of choice fortified by tuition grants. Some States still cling tothe older strategy.

When this Commission reported to the President and Congress in1959 various massive resistance laws of Virginia and Arkansas hadbeen held unconstitutional. 1 But at that time the new pattern of legislative hostility to desegregation, although emerging, was not yet clear.

Massive resistance is characterized by a series of laws and resolutionsadopted for the purpose of thwarting, or at least delaying, all effortsto implement the ruling in the School Segregation Cases. The key factors common to all such programs are:

The interposition of State authority in an attempt to nullify theeffect of the Supreme Court ruling and orders of Federal districtcourts based thereon.

Statutes authorizing and directing State or local agencies toassign pupils to public school on the basis of standards requiringa subjective evaluation of the student as an individual, his scholastic abilities and achievement, as well as the usual considerationsof curriculum, geography, transportation, and school capacity.

Centralized State control over public schools, traditionally vestedin local school authorities.

In general the new approach returns control to local authorities,giving them and their respective communities a choice as to the futureof their schools. The change in strategy is a response to a long seriesof court decisions on the constitutionality of massive resistance measures2014most of which did not stand the test of litigation.

Thus, one Federal court declared the first Virginia Pupil Placementlaw unconstitutional because it required an "efficient operation of theschools," defined in another law as segregation. 2 Another voided theTennessee School Preference Act that authorized boards of education

to maintain segregated schools for children whose parents chose segregation. 8 Still another declared invalid an amendment to the Louisianaconstitution that attempted to justify school segregation as an exerciseof State police power. A companion statute withdrawing State accreditation from any school that did not maintain racial segregation,and another Louisiana constitutional amendment withdrawing the State'sconsent to suits against State educational agencies met the same fate. 4

In answer to the claim of the Governor and Legislature of Arkansas

that State officials had no duty to obey Federal court orders, the Supreme Court declared, in Cooper v. Aaron ' 5

It is, of course, quite true that the responsibility for public education is primarily the concern of the States, but it is equally truethat such responsibilities, like all other State activity, must be exercised consistently with Federal constitutional requirements asthey apply to State action. The Constitution created a government dedicated to equal justice under the law. The I4th amendment embodied and emphasized that ideal. State support of segregated schools through any arrangement, management, funds, orproperty cannot be squared with the Amendment's command thatno State shall deny to any person within its jurisdiction the equalprotection of the laws.

This definition of State action within the meaning of the I4th amendment undermined State-supported resistance to public school desegregation2014and formed the basis for massive legal blows against massive resistance.

It was no surprise, therefore, when in the first months of 1959 a Federalcourt in Virginia held that a State which maintained a public schoolsystem violated the principle of equal protection if, to avoid desegregation, it closed one school while keeping others open. 6 A few monthslater a Federal court in Arkansas held a school closing law unconstitutional under the due process and equal protection clauses of the i4thamendment. At the same time it voided a companion act that providedfor transfer of public funds from closed schools to other public, or private,schools attended by the students of the closed schools. 7

By the second term of the 1958-59 school year, schools in three

Virginia districts, closed by the Governor after Federal courts had ordered admission of Negro children, were reopened after the laws underwhich the Governor had acted were held invalid. 8 Massive resistancehad proved ineffective. New and more subtle tactics were needed if theState policy of resistance was to be continued. Legislation enacted in1959-61 reflected this need.

1959 LEGISLATIVE SESSIONS

Virginia

The Virginia General Assembly, called into extraordinary session in January 1959 as a result of the collapse of massive resistance, again took thelead by devising what has become the new defensive approach. At firstthe only alternatives to massive resistance appeared to be either desegregation or complete abandonment of the State's public school system.However, a third choice was presented late in March 1959 by thePerrow Commission that Governor Almond had appointed to studythe problem.

The Commission reported that the most defensible position legallywould be for the State itself to go completely out of the school businessand leave each locality free to abandon public schools, or to operatethem as it saw fit with local tax funds and funds received from the Statefor general purposes. The Commission took the position that if therewere complete local autonomy, the abandonment of a local schoolsystem by local action would present no problem of State-imposedunequal treatment of localities.

The Commission, however, recommended neither the complete abandonment of public education nor complete local autonomy, but a middlecourse whereby the State system would be continued with the greatestpossible freedom of choice for each locality and each individual.9 Adoption of this approach transformed massive resistance into a scheme oflocal option, tuition grants, and free choice. All mention of schoolsegregation was deleted from the State school laws. Under the earlierlaw private-school tuition grants were authorized only if the student'spublic school had been desegregated. Under the new law desegregationwas no longer the premise for the subsidized choice of a private school.Parents were entitled to a tuition grant to send a child to a private schoolwithin or without the State, or to a public school outside of the schoolsystem of their residence.10 The statewide compulsory school attendancelaw was replaced by a measure giving each local community the right toadopt or suspend compulsory attendance whenever it deemed proper.11

Local boards of supervisors were authorized to make appropriations for

public schools for 3O-day periods,12 thus facilitating the closing of schoolsfor lack of funds.

Another bill, passed on April 28, I959,13 gave cities and counties thechoice of remaining under the authority...