Segregation North and West

At least until 1954 State and local law required separate public schoolsfor Negroes in the South. 1 With rare exceptions 2 such segregation asthere 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, adenial of equal protection may exist.

Where segregation is explicitly imposed by law, as in the South, theState action necessary to invoke the I4th amendment is clear. Theproblem there, as discussed above, 4 is simply to find the best ways toaccomplish desegregation. In the Northern and Western States thequestion is whether segregation results from such State action as willinvoke the I4th amendment.

In its 1959 Report, the Commission said: 6

Concentration of colored Americans in restricted areas of most

major cities produces a high degree of school segregation even incommunities accepting the Supreme Court's decision. With themigration of Negroes and Puerto Ricans to the North and the West,and an influx of Mexicans into the West and Southwest, the wholecountry is now sharing the problem and the responsibilities.

This migration has continued. The 1960 census lists five cities in theNorth and West, each with more Negro residents than any southern citywhere separate public schools for white and Negro children were required by law in I954- 6 Indeed, only 9 of the 25 largest cities in theUnited States 7 in 1960 lie in the South and 3 8 of them have completelydesegregated their school systems since 1954.

Public schools enrolling Negroes almost exclusively in some cases, andwhites almost exclusively in others, are found in many cities throughoutthe North and West. Although official reports are few due to a policyof not recording the race, religion, or national origin of pupils, the factsare clear. Three cities, where attempts are being made to change theexisting pattern, have frankly reported their findings as to segregation.A 1960 report of the board of education of New York City 9 reported

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that about one-fifth of the New York City elementary and junior highschools enrolled 85 percent or more Negro and Puerto Rican pupils,while 48 percent of the elementary and 44 percent of the junior highschools enrolled 85 percent or more white pupils. Philadelphia reported that 14 percent of its schools had an enrollment of 99+ percentNegro. 10 In Pittsburgh in 1959, half of the Negro children in publicschools attended schools which had 80 percent or more Negro enrollment. Sixty percent of all white children in public elementary schoolsand 35 percent of those in public secondary schools attended schoolswhich had less than 5 percent Negro enrollment. 11

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 saidto exist in 34 elementary schools in East Los Angeles. 18 In describingthe San Francisco program of districting elementary schools so thatchildren may attend schools within reasonable walking distance of theirhomes, the superintendent said: "Naturally, a number of schools arepredominantly of one race or another, reflecting the racial characteristicsof that immediate neighborhood . . ." 14 An official report on theBerkeley, Calif., system shows that two of its elementary schools have aNegro enrollment in excess of 90 percent. 15

Testimony at the Commission's Detroit hearings revealed that the 28

elementary schools in that city's Center District have an almost entirelyNegro enrollment. 10 Other nonsouthern cities with high racial concentrations in public schools include Boston, Chicago, Indianapolis, andCleveland and Youngstown, Ohio. 17 There are, no doubt, many others.

Segregation in the public schools of the urban North and West resultsto a large extent from the familiar system of neighborhood schools incombination with residential concentrations of minority groups. These"ghettos" were not explicity created by law. They arose largely becauseof 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 isimposed by governmental action (or inaction in the face of a legal dutyto act). Thus, the de facto segregation that results from free privatechoice, 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 childshall attend. This power is generally exercised by establishing attendance zones. Transfers to schools, other than those so assigned, areofficially controlled. The sites of new schools ordinarily are selected

by school authorities. All these powers obviously may be used to createor preserve a pattern of racial segregation.

GERRYMANDERING

A few cases have arisen recently in which it was contended that schoolauthorities had deliberately established or maintained school attendancezones to promote segregation. In demons v. Board of Education ofHillsboro, Ohio, 21 a Federal district court found that an elementaryschool zone had been established to insure the continuance of the LincolnSchool exclusively for Negro children. The facts showed that theLincoln zone, established by resolution of the board of education, wasmade up of two completely separated areas, one in the northeast, andone in the southeast section of the city. Nevertheless the court refusedto interfere lest it disrupt the orderly administration of the schools.

The United States Court of Appeals for the Sixth Circuit reversedthe decision and instructed the district court to order immediate relieffor the plaintiffs and to provide for the end of all school segregation ator before the beginning of the next school term. In his concurringopinion judge (now Mr. Justice Stewart) declared: 22

. . . The Hillsboro Board of Education created the gerrymandered

school districts after the Supreme Court had announced its firstopinion in the segregation cases. The Board's action was, therefore, not only entirely unsupported by any color of State law, but inknowing violation of the Constitution of the United States. TheBoard's subjective purpose was no doubt, and understandably, toreflect the "spirit of the community" and avoid "racial problems,"as testified by the Superintendent of Schools. But the law of Ohioand the Constitution of the United States simply left no room forthe Board's action, whatever motives the Board may have had.

In Henry v. Godsell, 23 another Federal district court found no basisfor the plaintiff's allegations that school attendance zones in Pontiac,Mich., had been changed to compel, or achieve racial segregation. 24

. . . The board of education has altered and modified attendance

areas from time to time to accommodate changes in population andas a result of the erection of new schools and additions to existingschools.

. . . In the absence of a showing that attendance areas have beenarbitrarily fixed or contoured for the purpose of including or ex- 101

eluding families of a particular race, the board of education is freeto establish such areas for the best utilization of its educationalfacilities.

In Taylor v. Board of Education of New Rochelle, N.Y., 26 in 1961 thecourt found that the school board had denied the plaintiffs equal protection of the laws by deliberate gerrymander of the Lincoln Schoolattendance zone to create and maintain an all-Negro school. Thecrucial facts appear in the following summary.

In 1930 the school board established highly irregular school zoneboundaries so that the Lincoln zone would include little but Negro areas,while the adjoining Webster zone was mainly white. In ensuing years,as the Negro area expanded to the west of Lincoln, its attendance zonewas extended to contain them. Similar action was taken to keep thenearby Mayflower School white in enrollment. White children remaining in the Lincoln zone were allowed to transfer to other schools.The result was that children living in adjoining houses attended differentschools solely because of race. White children living south of Lincolnwere assigned to Mayflower, half a mile north of Lincoln. Then earlyin 1949 the board, adopting a resolution to study zone lines, banned alltransfers as of the following September i. From January 1949 to thedate of the Taylor suit no redistricting was adopted, although theBoard discussed the problem, hired experts, made surveys, and reiteratedits belief in racial equality. Various recommendations made to the Boardduring this period are outlined in the court's opinion. Both the Johnsonand Dodson reports emphasized the racial concentrations in the schoolsdue to their attendance zones. The Dodson report warned that "to donothing about it is to encourage racial imbalance. To do nothing aboutit is a decision just as powerful and as important as a decision to try to dosomething about the imbalance." 2

In reply to the Board's contention that the School Segregation Cases

did not apply, since...