The Law of Desegregation

Paraphrasing the Supreme Court's rules governing school desegregationis much simpler than applying them. Seven years of litigation has notbrought uniformity among lower court decisions as to what does, andwhat 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 faithtoward 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 meetthe test of all deliberate speed? Only affirmative answers to all threequestions appear to meet the rules laid down by the Supreme Court.This chapter sets forth the answers to these questions found in lowercourt decisions. They will be analyzed in the light of the pronouncements of the Supreme Court in an attempt to delineate the law ofdesegregation.

PROMPT AND REASONABLE START

In the first years after the School Segregation Cases in 1954, lower courtstook a tolerant view of what constituted "a prompt and reasonable start"toward good-faith compliance. The formation of a citizens' committeeto study the problems of desegregation, or study and planning by aschool 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 emphasizedthat State authorities, including local school boards, are "duty boundto devote every effort toward initiating desegregation and bringing aboutthe elimination of racial discrimination in the public school system." 2

As the Court put it in Boiling v. Sharpe, ". . . the equal protectionclause of the i4th amendment prohibits the States from maintaining racially segregated public schools." 3

In Brewer v. Hoxie School District, the Court of Appeals for the

Eighth Circuit recognized the legal duty of the school board to act eventhough it was not under court order to do so: 4

The principles enunciated by the Supreme Court in the School

Segregation cases are binding upon plaintiffs in this case, as wellas on all other school boards or school officials administering public education programs. For in practical effect, the rights andduties of not only the immediate parties to the cases before theSupreme Court were at issue but also the rights and duties of allothers similarly situated.

A plan for a prompt and reasonable start apparently is no longerenough. The test of whether or not a plan is in "good faith" is action,not words. 6 Furthermore the "good faith" demanded is objective, notsubjective. Immediately after the Supreme Court's decision in the Little Rock case, a Federal district court instructed a school board asto the "good faith" required of it. 6

.. . the Supreme Court did not intend that the "good faith"

to be exercised by school authorities should be confined solely towhat you honestly and sincerely may believe is for the best interestof the child, the children in the affected school, and the public ingeneral.

. . . At no time has the Supreme Court used the words "good faith"as we would ordinarily interpret the same, and, you will observe, thegranting 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 adesegregation plan based on the Arkansas placement law and a generalpolicy against transfer of pupils already enrolled in school. It said thisplan would give at least some Negro first-graders a reasonable chanceof being assigned to a white elementary school. 7 But the Eighth Circuitreversed 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 indissuasive qualifications.

It appears that good faith now requires action; unimplemented plansno longer meet the requirement of a prompt and reasonable start.

FULL COMPLIANCE

Three basic types of plan for implementing desegregation have emerged:(i ) free choice of school (all schools in the system are open to anyeligible pupil without regard to race or residence); (2) rezoning ofattendance areas for all schools, white and Negro (all pupils livingwithin a delineated area are automatically assigned to the schooltherein); (3) individual pupil assignment (each pupil is judged byestablished 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 schoolmethod as a means of abandoning segregated schools, but even Baltimore's plan includes elements of rezoning and pupil assignment. Onlytwo limitations are placed on the pupil's free choice of school: First,where there are overcrowded schools, attendance is limited to residentsof the neighborhood2014a limitation removed as soon as the crowded condition is relieved; second, there are certain special-purpose schools withscholastic admission requirements. In the absence of gerrymander ofattendance zones, or discriminatory administration of admission requirements for the special-purpose schools, neither of which is suggested toexist 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 inSeptember 1954; its impact has been considerable. In October 1954,there were 53 schools attended by whites only, 61 attended by Negroesonly, and 49 in which both white and Negro pupils were enrolled. 9 In

other words there were 114, or 69 percent, of all schools attended onlyby white or Negroes. Six years later there were 100 schools attendedonly by whites or Negroes and 93 biracial schools. 10 The percentageof all schools attended by members of one race had dropped to 52. Doesthe fact that this kind of racial segregation persists in over 50 percent ofthe schools after 6 years of desegregation make the free-choice-of-schoolplan constitutionally vulnerable? It would seem not. The persistenceof segregation under any plan certainly may place the burden on theschool authorities to prove that all of their administrative practices arein fact nondiscriminatory; but, as many courts have said, 11 a free, privatechoice of segregation does not violate the Constitution. In Baltimoremost pupils choose to attend the school in the neighborhood of theirhomes and, therefore, to a large extent the enrollment of the schoolsreflects residential patterns. Since there is no legal compulsion in theirchoice of schools, no constitutional question as to the desegregation plan

I?

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

Several school systems have attempted unsuccessfully to get courtapproval 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 firstsuch plan was rejected by a Federal district court in Kelley v. Board ofEducation of Nashville, 13 on the ground that a choice between a segregated and nonsegregated school was merely a preliminary step to theestablishment of schools based on racial distinctions2014white as well asNegro pupils would be barred from some schools on the basis of racealone. 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 schoolsin the system on a racially segregated basis and others with the discrimination removed." 18 The plan could not meet the test of constitutionality because, when fully effective, racial discrimination would stillexist.

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

In Borders v. Rippy 19 a "salt and pepper" plan, presented by theDallas School Board at the urging of the Federal district court, wasapproved, but struck down on appeal. 17 Like the Houston plan, itprovided for separating and grouping schools into white, Negro, andmixed. It also provided for canvassing parents and pupils to ascertaintheir preferences. The U.S. Court of Appeals for the Fifth Circuitobserved that the "plan evidences a total misconception of the natureof 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-18

tional right to "the equal protection of the laws" is the right tostand equal before the laws of the State; that is, to be treatedsimply as individuals without regard to race or color.

The plan was rejected as one in which some segregation would be...