Arkansas, on the other hand, merely released any student from enrolling in or attending any school wherein both whites and Negro children were enrolled.36 The prototype of this Arkansas statute may be seen in a similar Virginia law.37 The State of Texas released a child from compulsory attendance if his parents should object to his enrollment in a racially mixed school.38 A similar rule was adopted in North Carolina.39 Louisiana stated squarely in its school closing law,40 that the Governor was authorized to close any racially mixed public school or any public school that was subject to a court order requiring it by a certain date to admit Negroes and whites. This same act authorized any parish and city board to transfer the property of any closed school to private parties for the operation of a private nonsectarian school. Mississippi authorized its Governor to close public schools or institutions of higher learning when he believed such closure would be in the interest of the State or would promote public peace and tranquility." Georgia provided in its General Appropriations Act for the fiscal year 1957 42 that no funds appropriated should be used for any public educational facility in which the white and Negro races were not separated, even if court decrees prohibited such separation. The State further provided 43 that the Governor could close district public schools upon ascertaining that they were not entitled to State funds for maintenance and operation. South Carolina also used the pocketbook method of closure by providing for a stoppage of State appropriations and State aid for any school from or to which any pupil was transferred by court order. It was further provided that this stoppage should cease only when the pupil involved returned to the school to which he had been assigned prior to the court order.44 Virginia enacted legislation in 1956 which provided that if any school should be racially integrated, it would at once come under State control and be closed.45 Such a school could not be reopened as a public school except by gubernatorial executive order finding that its opening would not affect the peace and tranquility of the community and that the assignment of pupils to that school could be accomplished without compulsory integration contrary to the wishes of any of its pupils or their parents. 36 Ark. Acts 1957, p. 280, No. 84. 43 Ga. Acts 1956, p. 6, No. 11. 44 S.C. Acts 1955, p. 433, No. 234. 45 Va. Ex. Sess. 1956, ch. 68, p. 69. In 1959, a United States District Court dealt a crushing blow to Virginia's "massive resistance" laws.46 The court stated that so long as the State, directly or indirectly, maintained and operated a school system with public funds, or participated by arrangement or otherwise in the management of such a school system, and so long as the State permitted other public schools to remain open at the expense of the taxpayers, no one public school or grade school could be closed to avoid the effect of the law of the land as interpreted by the Supreme Court. The Virginia Legislature thereafter, in Special Session in 1959, repealed its "massive resistance" statutes; "7 and provided for compulsory attendance without mention of race; 48 for return of control to local school boards; and for the financial structuring of local boards.49 North Carolina enacted legislation empowering the local Board of Education to close any or all schools within its jurisdiction and further providing for an election within the school unit to determine whether the school should be closed.50 Texas in 1957 made provision for the closure of a school system by the indirect method of withholding certain funds. The statute required that a local referendum be held to determine whether the dual school system should be abolished. If any school should integrate without holding such a referendum it would become ineligible for accreditation and cut off from State educational funds.51 An extraordinary session of the Arkansas legislature in 1958 empowered the Governor to close the schools of any district and within 30 days call upon the voters of the district to determine whether all schools within the district should be integrated.52 (5) Public education by private institutions Traditionally, neither sectarian nor non-sectarian private schools in the South have received State aid or tuition grants. In 1958, the Louisiana Legislature 53 authorized "educational cooperatives" to conduct private elementary schools, and to borrow for the purpose. Membership in a cooperative was limited to parents or guardians of children attending its school. Alabama amended its constitution in 1956, to permit the legislature to authorize whomever it pleased to establish and operate schools. 46 James v. Almond, 170 F. Supp. 331 (U.S.D.C.-E.D. Va., 19 January 1959). "Va. 1st Spec. Sess. 1959, ch. 2, 4 Race Rel. L. Rep. 188 (1959). 48 Va. 1st Spec. Sess. 1959, ch. 72 C C H 1959 Legis. Serv., Va. 83 (1959). 49 Va. Acts 1959, ch. 79, C C H Legis. Serv. Va. 57 (1959). 50 N.C. Ex. Sess. 1956, ch. 4, p. 9. 51 Tex. Acts 1957, ch. 283, p. 671. 52 Ark. Ex. Sess. 1958, No. 4, 3 Race Rel. L. Rep. 1048 (1958). Upheld in Garrett v. Faubus, Ark. Sup. Ct., April 27, 1959, 27. U.S.L. Week 2582, with the dictum that the power of the Governor to close all public schools permanently would violate the Fourteenth Amendment of the United States Constitution. The Act was held unconstitutional in Aaron v. McKinley. The citation to Aaron v. McKinley may be found in ch. IX. La. Acts 1958, p. 833, No. 257. The amendment provided that real or personal property could be leased, sold, or donated to or for the benefit of citizens for educational purposes. It further stated that real property belonging to the state could not be donated for educational purposes except to nonprofit, charitable organizations or associations.54 The State of Georgia authorized local school boards to lease public school property for private school purposes.55 The above statutory enactments providing for the leasing of public property for private school purposes are now under the shadow of the decision handed down on November 10, 1958 by the United States Eighth Circuit Court of Appeals, which enjoined the school officials of Little Rock from transferring possession or control of public schools.56 The Little Rock School Board was under direct order of the United States District Court to begin desegregation. But under the Circuit Court decision, any similar transfer of school property might reasonably be considered an impediment to the general duty throughout the United States to desegregate "with all deliberate speed." Educational grants from public funds, to help students escape desegregation by attending private, non-sectarian schools, were authorized in Virginia, North Carolina, Louisiana, Georgia, Arkansas, and Alabama.57 At this writing, no state had yet made such grants, and their constitutionality remained doubtful. The Tuition Grant Act of Arkansas has been held unconstitutional because interrelated with the State's unconstitutional school-closing law.58 (6) Pupil placement laws The essence of pupil placement or assignment laws is in the authority they give to administrative agencies, either local or statewide, to assign, transfer, or continue pupils in schools as a result of weighing a number of specified factors not related to race or color. Between 1955 and 1958, such laws were enacted by Alabama, Louisiana, Florida, Virginia, Texas, North Carolina, Arkansas, and Tennessee.0 Factors listed for consideration in the statutes of six of these states (Alabama, Louisiana, Florida, Tennessee, Arkansas and Texas) are as follows: 54 Ala. 1st Ex. Sess. 1956, p. 119, No. 82. 55 Ga. Laws 1956, p. 10, No. 13. Aaron v. Cooper, 261 F. 2d 97 (1958). 7 Va. Ex. Sess. 1956, ch. 68, p. 69; N.C. Ex. Sess. 1956, ch. 3, p. 4; La. Acts 1958, No. 258, p. 850; Ga. Laws 1956, p. 6, No. 11; Ark. Ex. Sess. 1958, No. 5, as amended by Act No. 151, Ark. Laws 1959; Ala 1st Ex. Sess. 1956, p. 119, No. 82. 58 Aaron v. McKinley, (E.D. Ark. June 18, 1959). Go Ala. Laws 1955, p. 492, No. 201; La. Laws 1958, p. 856, No. 259; Fla. 2d Ex. Sess. 1956, ch. 31380, p. 30; Va. Ex. Sess. 1956, ch. 70, p. 74 as amended by Act of March 29, 1958, Va. Acts 1958, ch. 500, p. 638; Tex. Acts 1957, ch. 287, p. 683; N.C. Ex. Sess. 1956, ch. 7, p. 14; Tenn. Acts 1957, ch. 13, p. 40. Ark. Stat. Ann. secs. 80-1519 through 80 In Alabama, Louisiana, Tennessee, Arkansas, and Texas: 1. Availability of transportation facilities. 2. Available room and teaching capacity in the various schools. 3. Adequacy of pupil's academic preparations for admission to a particular school or curriculum. 4. Psychological effect upon the pupil of attendance at a particular school. 5. Possibility of breaches of the peace or ill will or economic retaliation within the community. 6. Possibility of threat of friction or disorder upon pupils or others. 7. Home environment of the pupil. 8. The maintenance or severance of established social and psychological relationships with other pupils and with teachers. 9. Choice and interest of the pupil. 10. The morals, conduct, health and personal standards of the pupil. 11. The request or consent of parents or guardians and the reasons assigned therefor. In Alabama, Louisiana, Florida, Tennessee, Arkansas, and Texas: 12. Effect of admission of new pupils upon established or proposed academic programs. 13. Scholastic aptitude and relative intelligence or mental energy or ability of the pupils. 14. Psychological qualification of the pupil for the type of teaching and associations involved. 15. Effect of admission of the pupil upon the academic progress of other students in a particular school or facility. In Alabama, Louisiana, Florida, Arkansas, and Texas: 16. Suitability of established curricula for particular pupils. In Alabama, Louisiana, Arkansas, and Texas: 17. Effect of admission upon prevailing academic standards in the particular school. Assignment to any or all schools on the basis of the pupil's sex was authorized in the statutes of Alabama, Louisiana, Texas and Tennessee. The Tennessee and Arkansas Pupil Placement Acts contained several additional factors. The Alabama 1955 Pupil Placement Law, which contained all of the factors enumerated above, was held by the United States District Court for the Northern District of Alabama to be not unconstitutional on its face. The court presumed that the law would be administered without regard to race or color but recognized the possibility that in some future proceeding it might be declared unconstitutional in its application. The Supreme Court of the United States, upon appeal, 61 Shuttlesworth v. Birmingham Bd. of Education, 162 F. Supp. 372 (N.D. Ala. 1958). 517016-59-17 62 affirmed the judgment of the District Court, solely on the narrow point stated. 63 64 The original Virginia Pupil Placement Law, enacted in the 1956 Extra Session of the Legislature, listed only eight factors that could be considered in pupil placement. One of these, however, included any matters that might affect the "efficient" operation of the schools. And the same legislature, in its Appropriations Act,** defined an “efficient system of public schools" as one in which no school taught white and colored children in the same student body. The Federal District Court, in looking at the Pupil Placement Law, took judicial notice of this definition and found the two items of legislation interrelated. The Court therefore declared the Pupil Placement Act unconstitutional on its face.65 An amendment to the Virginia Act in 1958 merely ordered placement "so as to provide for the orderly administration of such public schools, the competent instruction of the pupils enrolled and the health, safety, and general welfare of such pupils." These are the only factors now listed in Virginia law. The Federal District Court reviewed the administration of the Virginia Pupil Placement Act with respect to 30 individual pupils in School Board of Arlington County v. Thompson. It found that substantial evidence supported the Board's refusal to transfer 26 of the Negro pupils to white schools. However, in the other four cases, the court found no such evidence and ordered that the pupils be admitted to white schools. North Carolina enacted a school placement law in 1955 and amended it in the 1956 Extra Session,67 without, however, disturbing in any way the direction given to the local boards of education. They were to make assignments of pupils "so as to provide for the orderly and efficient administration of the public schools, and provide for the effective instruction, health, safety, and general welfare of the pupils.” The United States Court of Appeals for the Fourth Circuit found such a Pupil Placement Act not unconstitutional on its face.68 If pupil placement laws that have been found not unconstitutional on their face are administered in an unconstitutional manner, the law is not voided but merely the action. Considering the thousands of school boards scattered throughout the nation, the task of the Federal judiciary in examining cases of this sort could mean a tremendously increased workload. 62 358 U.S. 101 (1958). 03 See note 60 supra. 64 Va. Ex. Sess. 1956, ch. 71, p. 77. 65 Adkins v. School Bd. of the City of Newport News, 148 F. Supp. 430 (E.D. Va., 1957), aff'd, 246 F. 2d 325 (C.A. 4th Cir. 1957), cert. denied, 355 U.S. 855 (1957). 66 166 F. Supp. 529 (E.D. Va., 1958). 67 N.C. Ex. Sess. 1956, ch. 7, p. 14. 68 Carson v. Warlick, 238 F. 2d 724 (4th Cir. 1956). |