started to desegregate. In Arkansas, North Carolina, Tennessee, and Virginia only a few have started.

The 798 school districts that have initiated desegregation constitute 27 percent of the 2907 biracial districts in the segregating States. Approximately 3 percent acted under court order, although there were others that proceeded after suit was filed or under threat of litigation."

The record by school districts, however, tells only a part of the story.

Just as the districts that have moved toward compliance are located in States with a small percentage of Negroes, so has it generally been districts having the smallest percentage of Negroes that have made a start. In addition, some of the districts that are classified as desegregated by virtue of the adoption of a transfer plan have never in fact enrolled a Negro pupil in a white school. In others, by reason of selective placement, the number of Negroes in formerly white schools is very small."

Table 19 shows the actual number of Negro pupils enrolled in schools attended by both races in each of the eleven States where such enrollment exists and in the District of Columbia. The last column in this table shows the percentage of Negroes enrolled with whites.

Thus, whereas about 15 per cent of the Negro pupils in these 11 States are enrolled in desegregated schools, 27 per cent of the biracial school districts are listed as desegregated. But if all 17 of the segregating States and the District of Columbia are considered, it is found that 93 per cent of the total Negro school enrollment are still in all-Negro schools. It does not follow, however, that all of these Negroes have been denied their constitutional right not to be discriminated against because of their race in admission to public schools. An authoritative and accurate determination of the number of Negro children at present segregated in violation of the Supreme Court ruling would require an adjudication by the Supreme Court of the State laws, policies, and practices governing each school district. Lacking such a determination, the policies and practices by which desegregation has been effected, discussed in previous chapters, will be considered in the light of the pertinent court decisions.

E.g., Van Buren, Arkansas: Banks v. Izzard, Civ. No. 1236, W. D. Ark., Aug. 3, 1957; 2 Race Rel. L. Rep. 965 (1957), (sult dismissed upon acceptance of desegregation plan by the plaintiffs); New Castle County, Del.: Evans v. Buchanan, 145 F. Supp. 873 (D. Del. 1956). (Christiana School District, one of eight defendant districts).

5 E.g., Texas and Arkansas.

E.g., Districts in Kentucky, Maryland and Texas. See footnotes (2) and (3) to Table 00, p. 4. E.g., Districts in North Carolina and Virginia.

TABLE 19.-Status of segregation-desegregation, 1958-59, in 11 States and

(1) All enrollment figures from S.E.R.S., Statistical Summary, October 1958, except as otherwise indicated. (*) Report of State Department of Education and S.S.N., December 1958, p. 9, total enrollment: Negroes in desegregated schools-Commission questionnaires.

(1) Commission questionnaire.

(1) State Department of Education and Commission questionnaires. Total enrollment as of June 1958. () State Department of Education and Commission questionnaires.

() Negroes in desegregated schools, S.S.N., September 1958, p. 13; November 1958, p. 15.

() Negroes in desegregated schools-State Department of Public Instruction, Nov. 12, 1958.

() Nashville and Anderson counties-data from Commisssion questionnaires.

() Negroes in desegregated schools, Texas Education Commissioner, S.S.N., October 1958, p. 14. (19) Negroes in desegregated schools, S.S.N., March 1959, p. 14.

(11) Negroes in desegregated schools, Nashville Conference, p. 116.

In Chapter I some of the basic questions that school boards and lower courts were going to have to answer in the application of the ruling of the Supreme Court in the School Segregation Cases were presented. Developments since 1955 require the addition of two more questions: (1) Can a plan, once initiated, be suspended? and (2) Can a State constitutionally grant financial aid to pupils to attend private segregated schools? These questions will be examined. A prompt and reasonable start

In the first years after the Supreme Court decision, the lower courts were liberal in finding that "a prompt and reasonable start toward full compliance" had been made if a school board had exhibited any activity pointing toward compliance. The formation of a citizens or other committee to study the problems of desegregation, or study and planning by the board itself, was held sufficient. Courts al

8

Robinson v. Board of Education of St. Mary's County, 143 F. Supp. 481 (D. Md. 1956); Kelley v. Board of Education of Nashville, 139 F. Supp. 578 (M. D. Tenn. 1956). Aaron v. Cooper, 143 F. Supp. 855 (E. D. Ark. 1956).

In one

lowed school boards six months or more to prepare plans.10 case, the board had even had the problem before it for five years without taking positive action.11

In another instance, failure for two years to take any action resulted in an injunction ". . . to dispel the misapprehension of the school authorities as to their obligations under the law and to bring about their prompt compliance with constitutional requirements as interpreted by the Supreme Court." 12 The same court, however, later postponed the injunction so that the school board could present a plan involving a six-month delay. This was in order to prepare the Negro children to enter a white school.13 The plan was, in due course, approved.14

District courts in some cases have entered only general orders, without time limits, which have not resulted in a start of any kind.15 Two of the original School Segregation Cases may be used as examples. In the Clarendon County, South Carolina, case, upon reconsideration after remand, an injunction was entered to be effective "from and after such time as they [the members of the school board] may have made the necessary arrangements for admission of children to such school on a nondiscriminatory basis with all deliberate speed." 16 The case was retained on the docket for entry of further orders and nothing more appears to have happened.

The School Board of Prince Edward County was the Virginia defendant in the School Segregation Cases. Upon remand from the United States Supreme Court a similar, indefinite order was entered.1

The plaintiffs in the Prince Edward County case, however, have been more persistent than those in South Carolina. Upon motion to order admission of the plaintiffs in September, 1956, the district court deferred the entrance of an order because public opinion opposed it and because such an order would lead to the closing of the school under State law.18 The court of appeals reversed the decision and instructed the district court to order the school board to make a

10 Banks v. Izzard, Civ. No. 1236, W. D. Ark., Jan. 18, 1956, 1 Race Rel. L. Rep. 299 (1956).

11 McSwain v. Board of Education of Anderson County, 138 F. Supp. 570 (E. D. Tenn. 1956).

12 School Board of Charlottesville v. Allen, 240 F. 2d 59 (4th Cir. 1956), cert. denied, 353 U.S. 910.

13 Allen v. School Board of Charlottesville, 263 F. 2d 295 (4th Cir. 1959). 14 Allen v. School Board of Charlottesville, E.D. Va., March 1959.

15 In addition to cases cited in notes 16 and 17 infra; see also, Bell v. Rippy, 146 F. Supp. 485 (N.D. Tex. 1956), rev'd, sub. nom. Borders v. Rippy, 247 F. 2d 268 (5th Cir. 1957); Bush v. Orleans Parish, 138 F. Supp. 337 (E.D. La. 1956), aff'd, 242 F. 2d 156 (5th Cir. 1956), cert. denied, 354 U.S. 921 (1957).

16 Briggs v. Elliott, 132 F. Supp. 776 (E.D.S.C. 1955).

17 Davis v. County School Board of Prince Edward County, Civ. No. 1333, E.D. Va., July 18, 1955, 1 Race Rel. L. Rep. 82 (1956).

18 149 F. Supp. 431 (E.D. Va. 1957).

prompt and reasonable start.19 The district court then fixed ten years following the 1955 decision in the Brown case as the time for such compliance.20 The court of appeals reversed this order on May 6, 1959 because the school authorities had taken no action whatever in the four years since the second decision in the Brown case and contemplated none. As a result of this decision, the Board of Supervisors of the county refused to appropriate any funds for operation of public schools in 1959-60 and also denied an alternate request for funds for tuition grants.22 Thus, one school district appears to have abandoned public education in preference to desegregation.

In the 1955 decision, the Supreme Court said that the vitality of the principles announced cannot yield to mere disagreement with them.23 In Cooper v. Aaron, the Supreme Court was even more forceful and said that the relevant factors to be considered by the district court excluded hostility to racial desegregation.24 However, such tangible factors as overcrowed schools,25 building programs in process, 26 disadvantage of mid-year entrance,27 and preparation of professional personnel, pupils and community,28 have been held sufficient singly and in combination to justify a short and definite deferment in putting a plan into operation. But after a finding that there are no administrative problems in the admission of Negro students to the existing white schools, the members of a school board as state officials sworn to uphold the Constitution have been held to have a duty to admit them forthwith.29 This view is supported by the words of the Supreme Court in Cooper v. Aaron: "Of course, in many locations, obedience to the duty of desegregation would require the immediate general admission of Negro children." 30 Admission forthwith has been ordered where no Negro school was maintained in the district.31 The rationale of these cases is reminiscent of the separate-but-equaldoctrine cases.32

19 Sub. nom., Allen v. County School Board, 249 F. 2d 462 (4th Cir. 1957) cert. denied, 355 U.S. 953 (1958).

20 164 F. Supp. 786 (E.D. Va. 1958).

27 U.S.L. Week 2564 (1959).

22 New York Times, June 7, 1959, p. 62.

23 349 U.S. 294, 300 (1955).

2358 U.S. 1, 6 (1958).

25 Willis v. Walker, 136 F. Supp. 181 (W.D. Ky. 1955); Simms v. Hudson, Civ. No. 4286, E.D. Okla., Nov. 14, 1957, 3 Race Rel. L. Rep. 12 (1958).

28 Moore v. Board of Education of Harford County, 152 F. Supp. 114 (D. Md. 1957), aff'd sub. nom., Slade v. Board of Education, 252 F. 2d 291 (4th Cir. 1958); Shedd v. Board of Education of Logan County, Civ. No. 833, April 11, 1956, S.D. W. Va., 1 Race Rel. L. Rep. 521 (1956).

Wilburn v. Holland, 155 F. Supp. 419 (W.D. Ky. 1957).

28 Aaron v. Cooper, 143 F. Supp. 855 (1957) aff'd, 243 F. 2d 361 (1957).

Hoxie v. Brewer, 137 F. Supp. 364 (E.D. Ark. 1956) aff'd, 238 F. 2d 91 (8th Cir. 1956); see also, Groves v. Board of Education of St. Mary's County, 164 F. Supp. 621 (D. Md. 1958), aff'd, 261 F. 2d. 527 (4th Cir. 1958).

20 358 U.S. at 6 (1958).

Willis v. Walker, 136 F. Supp. 181 (W.D. Ky. 1955); Kilby v. School Board of Warren County, Civ. No. 530, W.D. Va., Sept. 8, 1958, 3 Race Rel. L. Rep. 972 (1958).

See Corbin v. School Board of Pulaski County, 177 F. 2d 924 (4th Cir. 1949).

Full compliance

One of the questions the Supreme Court left unanswered was, What, short of the unification of the dual school system, would be held to constitute compliance with the new constitutional standard?

34

Several lower courts have stated that abolishing discrimination does not necessarily mean that white and Negro children shall be "mixed" in the schools.33 Nor does it require that Negro schools be abolished if attendance at such schools is voluntary. The fact that a school may be attended only by members of one race because only one race lives within the attendance area is not constitutionally objectionable, in the absence of bad faith, or gerrymandering, in the zoning. 36

35

On the positive side, a desegregation plan permitting a Negro to apply for transfer from the Negro school to a white school nearer his home has been approved.37 It should be noted that continued operation of both white and Negro schools and initial assignment of pupils thereto by the school board, on the basis of race, seems to be inherent in such a plan.

The North Carolina "Pearsall Plan" seems in practice to operate in this way. The legislature has vested in the local school boards, authority to enroll pupils in specific schools within their districts in a manner to provide for orderly and efficient administration of the schools, effective instruction, and the health, morals, and safety of their pupils. So far as the Commission has been able to ascertain, the school boards of North Carolina unanimously exercised this discretion by assigning all white students to white schools and all Negro students to Negro schools.39

38

The North Carolina statute permits any parent or guardian of a child dissatisfied with the initial assignment to apply to the board for transfer. It also provides administrative appeals for those dissatisfied with the action of the board. A few applications have been acted upon favorably by the school boards in three cities.40 Individual

33 See e.g., Allen v. School Board of Prince Edward County, 249 F. 2d 462 (4th Cir. 1957); Briggs v. Elliott, 132 F. Supp. 776 (E.D. S.C. 1955).

34 Jefferson v. McCart, Civ. No. 4532, E.D. Okla., Oct. 10, 1958, 3 Race Rel. L. Rep. 1154 (1958).

35 Brown v. Board of Education of Topeka, remand, 139 F. Supp. 468 (D. Kans. 1955); Henry v. Godsell, Civ. No. 14,769, E.D. Mich., Aug. 12, 1958, 3 Race Rel. L. Rep. 914 (1958).

36 Clemons v. Hillsboro, 228 F. 2d 853 (6th Cir. 1956).

37 Moore v. Board of Education of Harford County, supra note 26, aff'd sub. nom., Slade v. Board of Education, 252 F. 2d 291 (4th Cir. 1958).

38 Act of March 30, 1955, N.C. Laws 1955, ch. 366, p. 976 as amended by Act of July 27, 1956, N.C. Ex. Sess. 1956, ch. 7, p. 14.

30 Nashville Conference, p. 105; Wey and Corey, Action Patterns in School Desegregation, p. 123.

40 Charlotte, Greensboro, and Winston-Salem. Wayne County has zoned one school built with Federal funds for the exclusive use of dependents of Air Base personnel, including the child of a Negro sergeant.