The Threat to Education

.. . no instrumentality less universal in its power and authoritythan Government can secure popular education. . . . withoutpopular education, moreover, no government which rests on popular action can long endure. . . .

WOODROW WILSON

As a premise to its conclusion in the School Segregation Cases that separate educational facilities are inherently unequal, the Supreme Courtstressed the importance of education as "perhaps the most importantfunction of State and local governments," x and observed that the opportunity for education ". . . where the State has undertaken to provide it, is a right which must be made available to all on equal terms." 2

In 1955 a three-judge Federal district court in discussing the Supreme Court decision in Briggs v. Elliott, one of the original SchoolSegregation Cases, 3 elaborated on "what the Supreme Court has decided and what it has not decided in this case": *

[It] has not decided that the States must mix persons of differentraces in the schools or must require them to attend schools or mustdeprive them of the right of choosing the schools they attend. Whatit has decided, and all that it has decided, is that a State may notdeny to any person on account of race the right to attend anyschool that it maintains. . . . Nothing in the Constitution or inthe decision of the Supreme Court takes away from the peoplefreedom to choose the schools they attend. . . . The i4th amendment is a limitation upon the exercise of power by the State orState agencies, not a limitation upon the freedom of individuals.

This exegesis underlies a number of measures taken by States of theDeep South in response to the School Segregation cases. The i4thamendment prohibits racial segregation only by the States and theirinstrumentalities. Eliminate participation by the States in the field ofeducation, and segregation can be preserved. Measures premised onthis reasoning were enacted by all of the former Confederate Statessave Tennessee, 5 ranging from laws compelling or allowing the closingof public schools, through the repeal of compulsory school attendance

laws, to tuition grants and other devices allowing substitution of private(and segregated) schools for public (and possibly desegregated) schools.

These measures appear to threaten a fundamental concept of American society2014that of free, universal, and compulsory education. Thepurpose of this chapter is to examine the nature of these measures, andtheir constitutional and practical implications.

SCHOOL CLOSING LAWS

Six States have, at one time or another, adopted legislation which directsor permits the closing of schools to avoid desegregation. In three Statessuch laws have been repealed or struck down as unconstitutional; but thethreat of school closing remains.

An extreme example of such legislation was that adopted in Mississippiin 1954 and 1958. In December 1954 a constitutional amendment wasadopted and approved by a 2 to i margin which authorized the legislature or the local school districts to close public schools in the Stateupon a majority vote of both houses of the legislature. 6 In 1958 theMississippi Legislature gave the Governor authority to close any Stateinstitution of higher education, and all schools of any school district if hedeemed it to be "to the best interest of a majority of the educable childrenof any public school of that district." 7

Immediately following the Supreme Court decision in Cooper v.

Aaron 8 in September 1958, Governor Faubus signed a bill adopted bythe Arkansas General Assembly giving him the right to close a school orschools in any particular school district if he determined that there was"actual or impending domestic violence" endangering lives and property;if Federal troops were stationed in or about a public school; or if hedetermined that an "efficient educational system cannot be maintained inany school district because of the integration of the races in any schoolwithin that district." 9 The Arkansas Supreme Court upheld this actas constitutional under both the State and the Federal Constitutions in Garrett v. Faubus, 10 stating that it was a reasonable exercise of the Statepolice power to meet an emergency. The State court added: "

.. . If act 4 is viewed as giving the Governor the power to closeall public schools permanently, it would, we conceive, be in violation not only of the decree in the Brown case but also of the Stateconstitution, but we do not consider it that way.

However, in the wake of the State struggle against desegregation of theLittle Rock high -schools, a three-judge Federal district court found this

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act, and a 1959 amendment withholding State funds from any schoolso closed, to be "clearly unconstitutional under the due process and equalprotection clauses of the i4th amendment." "

Plans for the abandonment of public education in Virginia were carefully laid. In 1956 the Virginia General Assembly enacted a provisionannouncing the State's public policy to be one of racial segregation inthe public schools, and declaring that desegregation of schools "coulddestroy the efficiency of the school . . . and tranquillity of the community." It directed, therefore, that whenever any school was desegregated, whether voluntarily or under compulsion of a court order, theGovernor had to assume control in the name of the Commonwealth andclose it. 13 The Governor could reopen and return the school to the localauthorities whenever it appeared that they could operate the schools inaccordance with "State policy." The consent of the State to be sued forany action taken under this law was specifically withheld. Two yearslater the act was extended to include any public school policed by Federalmilitary forces, 1 * and separate legislation was enacted to authorize theclosing of other schools in the same district when the closing of any publicschool ". . . should in the opinion of the Governor, cause the peace andtranquillity of the school division in which such school is located to bedisturbed. . . ." 15 In September 1958, the Governor utilized thesepowers to close the Warren County High School, an elementary, anda high school in Charlottesville, and six secondary schools in Norfolk, allof which were under court order to admit Negro students.

These Virginia school-closing laws were declared unconstitutional inJanuary 1959 by a three-judge Federal district court and by the SupremeCourt of Appeals of Virginia in separate suits. 16 In a suit brought bythe Attorney General of Virginia, the State supreme court of appealsheld that the School Segregation cases invalidated the section of the Stateconstitution which provided that white and colored children should notbe taught in the same school, but did not affect the section which requiredthe general assembly to "establish and maintain an efficient system ofpublic free schools throughout the State." The State court found thatthese laws violated the latter provision, explaining: 17

. . . That [section] means that the State must support such public

free schools in the State as are necessary to an efficient system, including those in which the pupils of both races are compelled to beenrolled and taught together, however unfortunate that situationmay be. ... [The school closing laws] violate(s) section 129 ofthe constitution in that they remove from the public school systemany schools in which pupils of the two races are mixed and make noprovision for their support and maintenance as a part of the system.

The Federal district court, in James v. Almond,2122 approached theproblem from the standpoint of the equal-protection clause of the i4th

amendment. In a suit brought by white parents, this court found thatthe Virginia school-closing laws of 1956 were unconstitutional not onlybecause they "effectively require a continuance of racial discrimination,"but also because the closing of schools discriminated against both whiteand Negro children assigned to those schools. 19

We are told that, because the schools are closed to all alike, both

white and colored, there is no discrimination and hence there isno violation of the i/j-th amendment. This premise is totally unsound. . . . Where a State or local government undertakes toprovide public schools, it has the obligation to furnish such educationto all in the class eligible therefor on an equal basis. . . . Whilethe State of Virginia, directly or indirectly, maintains and operatesa school system with the use of public funds, or participates by arrangement or otherwise in the management of such a school system,no one public school or grade in Virginia may be closed to avoid theeffect of the law of the land as interpreted by the Supreme Court,while the State permits other public schools or grades to remainopen at the expense of the taxpayers.

The court's comments on school closing on a local option basis are ofinterest in view of later laws: 20

In the event the State of Virginia withdraws from the business of

educating its children, and the local governing bodies assume thisresponsibility, the same principles with respect to equal protectionof laws would be controlling as to that particular county or city.While the county or city, directly or indirectly, maintains and operates a school system with the use of public funds, or participatesby arrangement or otherwise in the management of such a schoolsystem, no one public school or grade in the county or city may beclosed to avoid the effect of the law of the land while other publicschools or grades remain open at the expense of the taxpayers.Such schemes or devices looking to the cut off of funds for schoolsor grades affected by the mixing of races, or the closing or elimination of specific grades in such schools, are evasive tactics whichhave no standing under the law.

The court in the above case seemed to say that in a State system ofpublic schools, the closing of any school and the operation of othersanywhere in the State is a denial of equal protection to the...