disorder." The fact that the conditions found by the district court to justify the suspension were traceable directly to the official actions of legislators and executive officials of the State did not pass unnoticed. The Supreme Court said that every State official is committed, by his oath of office, taken pursuant to Article VI, to support the Constitution as interpreted by the judicial department.

The order of the district court allowed more than a suspension (it required Negroes already admitted to the white high school under the plan to be withdrawn), but this was not mentioned either by the district court, the court of appeals, or the Supreme Court. In spite of this decision, it cannot be said that a mere postponement of the next step in a gradual plan would not be approved if a constructive program for the period of the suspension were offered.75

Evasive schemes

In Cooper v. Aaron " the Supreme Court recognized that public education is primarily the concern of States but pointed out that State action in discharge of this responsibility must be exercised in a constitutional manner. The court then said:

State support of segregated schools through any arrangement, management, funds, or property cannot be squared with the Amendment's command that no State shall deny to any person within its jurisdiction the equal protection of the laws."

This clear statement has since led to an injunction restraining the Little Rock school board from leasing a school which had been closed under State law, to private interests for use as a segregated school.78 The intended lease also included the services of public school teachers under contract to teach in the closed high school." The district court was instructed not only to enjoin the school board from transferring possession of school property for segregated operations but also from engaging in any other acts "capable of serving to impede, thwart, or frustrate the execution of the integration plan mandated against them..." 80

The payment of tuition grants out of appropriations for public schools has been enjoined, not on constitutional grounds, but because the funds from which they were to be paid were appropriated for public schools.81 There is a fundamental question here that has not been answered. This is whether or not a state or an agency thereof can

74 See note 71 supra.

75 See Allen v. School Board of Charlottesville, supra, 263 F. 2d 295 (1957).

supply funds for tuition to nonsectarian, private, segregated schools for those who object to attending a school attended by another race, without bringing the private school within the scope of the Fourteenth Amendment.82

THE PROSPECTS FOR THE FUTURE

The record of desegregation shown in Table 18, page 296, indicates that the impetus of voluntary compliance reached a peak in September, 1956, and has declined rapidly since that date. This suggests that future progress will be at a much slower pace in the absence of events providing a new stimulus. Experience shows that this might arise from court orders, from the invalidation of State laws now preventing voluntary action, or from strong leadership. Each of these possibilities will be considered.

Court orders

There are both advantages and disadvantages in having the time, place, and method of desegregation determined by court order.

On the benefit side, a court order relieves the local school board of the onus of action against the wishes of the community. This is particularly important in small communities where board members are well known to the citizenry and may be subject to harassment and economic pressure.83 Even in larger places, however, school officials have not been immune from abuse when they acted voluntarily.84 Furthermore, a court order enlists the support of law-abiding elements of the community otherwise opposed to desegregation.s

85

When the court order results from the invalidation of a State law designed to thwart compliance, it has the further effect of reaffirming the fact that the Constitution, as interpreted by the Supreme Court, is the law of the land in all States of the Union. Any notion that State activities do not have to meet constitutional requirements has to be corrected before school boards are free to work out plans to meet the needs of their communities.86

On the debit side, desegregation by court order leaves the selection of the time, place, and to a considerable extent manner of compliance, to individuals other than the responsible local leaders. Negro leader

The constitutional question is whether such indirect public financial support constitutes state action of a character to deprive the institution so supported of its private character. For early cases on the subject, see: Kerr v. Enoch Pratt Free Library, 149 F. 2d 211 (4th Cir. 1945) cert. denied, 326 U.S. 721; Norris v. Mayor and City Council of Baltimore, 78 F. Supp. 451 (Md. 1948); Clark v. Maryland Institute, 41 Atl. 126 (Md. 1898).

See supra, p. 292f.

* See supra, p. 293.

Nashville Conference, p. 87.

aupra, p. 232.

ship cannot be justly criticized for resorting to legal action when no other course is open, but the locality where a plaintiff may be willing to incur community displeasure by bringing suit may not be the best place in a particular State or region to take the step at a particular time.

Community preparation and participation in the planning of desegregation has been found conducive to a smooth transition.87 Such preparation and planning is lacking when desegregation comes precipitately by court order, producing instead community hostility and disorder. 88

89

Desegregation by court order has the further disadvantage of making a single community, and in some cases a single school, the target for professional agitators. This has sometimes been avoided by cooperative planning and simultaneous action by several nearby districts.90

Those who oppose desegregation may favor action only by court order because of the possibilities for delay inherent in legal action and the fact that it affects only one district, one school, or even one pupil at a time. However, the record to date does not show that the various permissive and selective plans voluntarily adopted have resulted in a precipitate rush of Negroes into the white schools.91

The advantage or disadvantage of desegregating one district at a time was lost in Delaware when eight pending cases were consolidated and the State Board of Education was ordered to present a desegregation plan for all segregated school districts in the State.22 The State Board, as a party defendant, presented a plan that was recently approved by the district court, but whether the individual school districts that were not parties to the action will voluntarily comply remains to be seen. At all events they have lost the opportunity of preparing a plan designed to fit their particular local conditions. Invalidation of State laws

93

Laws requiring a local referendum before a school board can initiate a desegregation program (as in Texas), or before closed schools can be reopened on a desegregated basis (as in Arkansas), obviously impede the progress of desegregation. Both Texas and Arkansas have many segregated school districts with small Negro population, in

See supra, 282 ff. 83 See supra, p. 203f. See supra, p. 219. 90 See supra, p. 224.

01 See supra, p. 279.

92 Evans v. Buchanan, 152 F. Supp. 886 (D. Del. 1957) aff'd, 256 F. 2d 688 (3d Cir. 1958) cert. denied, 358 U.S. 836 (1958).

See supra, p. 188.

which the adjustment to nondiscrimination should be very slight.** Yet further progress cannot be expected so long as the referendum laws stand and the people believe they have a choice of compliance or noncompliance with the law of the land.

Similarly, school-closing laws hang like a sword of Damocles over the heads of school board members. As the Court of Appeals said in the Arlington County Virginia case, a school board cannot be expected to act dispassionately on applications for transfer when it knows that action favorable to desegregation will result in the closing of the schools. Since the invalidation of the Virginia and Arkansas school closing laws, however, such laws are found in only two States, Louisiana and Mississippi.

95

96

Various forms of educational grants to those who object to attending school with a member of another race are provided by law in five states." Theoretically, the presence of such laws should make a desegregation plan more acceptable to a community, since a means of escape for those opposed is apparently provided. However, doubts regarding the constitutionality of such laws may counterbalance this effect.

Since the Alabama pupil placement law was held valid on its face, it seems reasonable to predict that some of the States having such laws may attempt to use them to forestall court orders, particularly in view of the signal success of North Carolina in this regard. Indeed, the Dade County, Florida, Board of Education has already announced the assignment of Negro pupils to one white school in September, 1959.98

Eight states have a pupil placement law," but in two the use of the law appears to be effectively blocked by school closing and referendum laws.1

The rate of desegration under pupil placement laws is very slow. However, such laws, honestly and fairly administered, seem particularly well suited to effect a transition in communities with large numbers of Negroes greatly handicapped both in regard to previous schooling and in the socio-economic background so largely determinative of scholastic success. In communities where such conditions prevail, a selective method to permit a better educational opportu

Three such referenda have been held in Texas to date. Two communities voted to desegregate and one to continue segregation. Little Rock voted not to integrate. Hamm v. School Board of Arlington County, 263 F. 2d 226 (4th Cir. 1959).

95 Florida has more limited school-closing laws.

"Alabama, North Carolina, Georgia, Louisiana, and Virginia.

Florida, Governor's Advisory Commission on Race Relations, March 16, 1959, p. 14. Alabama, Arkansas, Florida, Louisiana, North Carolina, Tennessee, Texas and Vir

ginia. See supra, p. 240.

1 Louisiana and Texas.

See Education Section, Chapter VIII, supra.

nity to those currently able to profit from it seems a maximum objective in the absence of an extensive remedial program. At least this appears true outside of large cities, where the adjustment is possible under other methods. There is, however, no indication at this time of any voluntary actions except in Florida.

3

In summary, the invalidation of some State laws might bring some further desegregation, but a large amount cannot reasonably be expected without other impetus.

Leadership

In previous chapters the role of State and local leadership in the desegregation of various school systems has been emphasized.*

State and local political leadership has supported school authorities in many places. Where desegregation has not been made a political issue, desegregation programs have moved smoothly, and educational standards have not not only been maintained but opportunities for both races have been improved. In all serious trouble-spots, opposition came from sources other than educational leaders and teachers.

The Baltimore City Superintendent, John H. Fischer, spoke eloquently in Nashville of the role of the public school in our society:

while we [the Baltimore City school authorities] recognize that the kinds of changes that we want must occur in the hearts and minds of people, the school has an enormous responsibility for what happens in the hearts and minds of people.

The school, aside from the church, is the one institution we create in society to influence the content of men's minds and the quality of what goes on in those minds.

We believe also that the influence of the school is related to much more than merely what the school teaches. What the school does is much more influential than what it verbalizes, and so we believe that this is one reason why in schools we must not simply wait for things to happen. We must help in sound, psychological, and educational ways to encourage the right things to happen. That is what education is for."

Parents as well as educators know that children learn more by example than by words. In Baltimore and in schools in hundreds of other districts, children are learning by the example of their teachers that the worth and dignity of each individual without regard to his race, color, religion, or national origin is more than a national fable.

Unfortunately, this has not been the universal experience. The predominant leadership in some places has taught a different lesson: one of contempt for law and of personal cruelty and hate. The effect of defiant leadership upon children is even greater when it is abetted by their parents. A teacher at Clinton High School observed:

See supra, p. 275 ff.

See Education Section, Chapters IV and VII, pp. 55 c. and 107 c.

5 Nashville Conference, p. 145.