Role of the Executive Branch

Each branch of the Federal Government has a role in the maintenance,improvement and constitutional operation of public schools throughoutthe Nation. Congress has authorized grants-in-aid to improve thequality of State and local educational institutions. As a result of violencein connection with court-ordered desegregation, it passed the Civil RightsAct of 1960 which imposes criminal penalties upon those guilty of willfully obstructing Federal court orders. The Federal courts have haddirect responsibility for carrying out the United States Supreme Courtdecisions on school desegregation.

The Chief Executive is charged by the Constitution to "take care thatthe laws be faithfully executed." 1 This duty is not limited to the enforcement of Acts of Congress but includes obligations growing out ofthe Constitution itself. 2 One President dispatched troops to Little Rockin 1957 and sent Federal marshals to New Orleans in 1960 to preventmob interference with Federal court desegregation orders. Presidentialstatements have stressed the importance of carrying out the constitutionalprinciples announced in the School Segregation Cases. On the occasionof the opening of the Commission's third education conference at Williamsburg in February 1961 the President telegraphed the conference: 8

Let me here pay tribute to these educators2014principals, officers of

school boards, and public school teachers. The constitutional requirement of desegregation has presented them with many newresponsibilities and hard challenges. In New Orleans today, asin many other places represented in your three conferences, theseloyal citizens and educators are meeting these responsibilities andchallenges with quiet intelligence and true courage. The wholecountry is in their debt, for our public school system must be preserved and improved. Our very survival as a free nation dependsupon it. This is no time for schools to close for any reason, andcertainly no time for schools to be closed in the name of racialdiscrimination. If we are to give the leadership that the worldrequires of us, we must be true to the great principles of our Constitution2014the very principles which distinguish us from our adversaries in the world.

Let me also pay tribute to the school children and their parents,of both races, who have been on the front lines of this problem. Inaccepting the command of the Constitution with dignity, they, too,are contributing to the education of all Americans.

In the same spirit the Secretary of Health, Education, and Welfareturned down a request for aid from white private schools in Prince Edward County, Virginia, where public schools had been closed to avoiddesegregation. The Secretary stated at the time "any aid to the PrinceEdward School Foundation would not only constitute aid to a privateschool to the detriment so to speak of the public school system, butwould also discourage efforts to reactivate the public schools in thecounty." The Secretary added that he hoped the department wouldreject any future requests "in which the donation of surplus propertywould contribute to the abandonment of a public school system ratherthan its furtherance." * His successor has indicated to a Senate Committee that the policy will be continued.

The most effective executive action in public school desegregation hasbeen the participation of the Attorney General of the United States insome desegregation suits. His activity in the traditional role as adviseron the law and his intervention as plaintiff will be recounted in thischapter.

THE SECOND BROWN CASE

The first appearance of the Attorney General in a school desegregationcase came in Brown v. Board of Education. 5 In its 1954 decision in the School Segregation Cases the Supreme Court requested further argument on the question of relief, and invited the United States AttorneyGeneral and the attorneys general of all States in which racial segregation was explicitly required or permitted by law to file briefs as amidcuriae, or "friends of the court." Plaintiffs in the consolidated casescontended that there was no justification for delay, and that Negrochildren should be admitted to public schools on a nondiscriminatorybasis "forthwith." On the other hand defendants and some of the amid curiae argued for delay. They emphasized the long history oflegally sanctioned segregation and the social pattern established thereby,concluding that the Court should leave the implementation of its decisionto the voluntary action of local communities. The Federal AttorneyGeneral proposed a middle course which the Court in substance adopted.He suggested that the cases be remanded to the lower courts to requirethe defendant school boards either to admit the plaintiffs immediately,

or to submit plans to accomplish desegregation as soon as practicable.Thus, the school boards would have the burden of showing how much, ifany, time was required to carry out desegregation.

THE HOXIE CASE

The United States appeared again as amicus curiae to advise the courton the issues of law involved in Brewer v. Hoxie School District No. 46of Lawrence County, Arkansas, which reached the United States Courtof Appeals for the Eighth Circuit in October I956.6 That action wasbrought by the Hoxie School Board against a group of individuals whohad conspired to obstruct its attempt to comply voluntarily with theSupreme Court's ruling. The defendants were charged with makinginflammatory speeches, trespassing on school property, causing theearly closing of the schools, and reducing school attendance when theschools were open. The Federal district court had granted a temporaryrestraining order, and later an injunction. The United States intervened on appeal with leave of the court and a stipulation between theparties.7 Its brief as amicus curiae advocated affirmance and assertedas its reason for intervention the nationwide importance of the issuepresented.8 This issue, whether or not State officials could be protectedby the Federal courts from a purposeful obstruction to the performanceof a duty imposed upon them by the Constitution of the United States(as distinct from a court order), was decided in the affirmative by thecourt of appeals. Its opinion borrowed extensively from the Government's brief. The court said: 9

The principles enunciated by the Supreme Court in the School

Segregation Cases are binding upon plaintiffs in this case, as well ason all other school boards or school officials administering publiceducation programs. . . . Plaintiffs are under a duty to obey theConstitution. Const. Art. VI, cl. 2. They are bound by oath oraffirmation to support it and are mindful of their obligation. Itfollows as a necessary corollary that they have a Federal right tobe free from direct and deliberate interference with the performanceof the constitutionally imposed duty. The right arises by necessaryimplication from the imposition of the duty as clearly as though ithad been specifically stated hi the Constitution.

In the second Brown and Hoxie cases, the United States had followedthe traditional pattern of amicus intervention, appearing only to advise

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the Court on issues of law involved. The Supreme Court has statedthat "[A] Federal court can always call on law officers of the UnitedStates to serve as amid" 10 However, the function and powers of amicuscuriae have recently become an issue in school desegregation cases because of the more extensive participation of the Attorney General in thiscapacity and as intervenor in some suits.

THE CLINTON CASES

In the criminal contempt proceedings brought for the violation of aninjunction against Kasper for violent interference with the orderly desegregation of public schools in Clinton, Tennessee, the United StatesAttorney, on request of the court, participated actively as amicus curiae, and even interrogated witnesses. On appeal the United States Courtof Appeals for the 6th Circuit upheld the conviction, noting the participation in the trial by the United States Attorney.11

The Federal role in the Hoxie and Kasper cases showed an expanded

concept of amicus2014not merely an adviser on the law but a defenderof those performing a Federal duty. Each was based on the theory thatthe school board, having a duty to admit students to the public schoolson an equal basis, had a corresponding right to be protected in theperformance of that duty. The interest of the United States in providing that protection justified its intervention.

THE LITTLE ROCK CASES

The special interest of the United States in supporting the orders ofits courts was a crucial feature in Aaron v. Cooper.2122 While the LittleRock school board was preparing to desegregate Central High in accordance with a Federal court order, the Arkansas General Assemblypassed a number of laws to block school desegregation. Thus armedwith legislative authority, in September 1957 the Governor ordered theArkansas National Guard to prevent Negroes from entering the school.13

When the school board sought instructions, the Federal district court

directed the board to proceed with the desegregation forthwith, denieda stay,14 and advised the United States Attorney by letter that its originalorder had not been complied with." The Court requested him to investi- 152

gate and report his findings. On the basis of his report, the court orderedthe Justice Department to intervene as...

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