Excerpts from Virginial Law Review Vol. 45, No. 4

    EE Ti Ea TG TTI 

  

  

1962 PUPIL PLACEMENT ACTS 1467 
] 

  

Although the Supreme Court took considerable pains to delineate the 

role of the district courts in supervising compliance with its mandate and 

further ordered that compliance be accomplished “with all deliberate speed,”123 - 

it never made clear what kind of reforms would constitute adequate com- 

pliance. Those Southerners willing to admit that the Brown decision was 3 

enforceable law retained the conviction that the effects of the decision could ; 

be limited. The federal courts themselves had pointed out that “the Constitu- 

tion . . . forbids any state action requiring segregation of children in public 

schools solely on account of race; it does not, however, require actual integra- 

tion of the races.’1?* Tt followed that the Supreme Court could not have 

meant to command that “the states must mix persons of different races in the 

schools . . . .”125 To some federal judges this proposition appeared to imply 

the conclusion that “no general reshuffling of the pupils mn any school system 

has been commanded.”12¢ Relying perhaps too uncritically on this reasoning, 

one Southern commentator asserted that “the Brown decision is not a sweep- 

ing edict compelling a reorganization of southern school systems.”127 

Tn the years prior to 1954, nearly all of the three thousand school boards 

in the South had developed a system of biracial school districting under which 

separate zones were set up for white and Negro schools.?® If the zones 

coincided or overlapped, each Negro and white child was sent to the school 

for his race. 12? This system of assignment based on race was not discontinued 

after the Brown decision, and the pupil placement statutes made no attempt   
to alter it. In fact, the requirement of individual consideration would have 

made the employment of the pupil placement acts utterly impractical as a 

device for determining initial assignments. 3 The Southern legislators seem 

to have assumed that, having no “affirmative duty to integrate,” they could 

fully satisfy constitutional requirements by establishing a procedure through 

which a Negro might secure his transfer to a white school that he was quali- 

fied to attend.13! Although the Supreme Court had said in Cooper v. Aaront32 

that state officials were “duty bound to devote every effort toward initiating 

    

123. Brown v. Board of Educ., 349 U.S. 294, 301 (1955). 

124. Avery v. Wichita Falls Independent School Dist, AEE 24 230,233 (5th Cir), 

lenied: 353. 10.S933 (1957). 
i 

122: Delnos wv. Elliott 12.5. Supp. 776, 777 (E.D.S.C. 1953). 
126. Thompson v. County School Bd. 144 F. Supp. 239240 (E.D, Va.), aff'd sub ; 

i. School Bd. v.-Allem 240 F.2d 59 (4th Cir. 1956), cert. denied, 353 U.S. 911 (1957). 

{1 > Meador, supra note 106, at 523. H—— 

    

  

il vv. School’Bd 282 F.2d 473 (4th Civ, 1960); Bushy, Orleans Parish 

04 F. Supp. 568 (E.D. La.) modified, Civil No. 19720, 5th Cir., Aug. 6, 

dificd on rehearing, Aug. 28, 1962. See also Meador, supra note 106, at 544. 

¢ notes 164 & 165 infra and accompanying text. 

Cor 2.0. Northcross v. Board of Educ. 2302 F.2d 818 (6th Cir.), cert. denied, 

5044 (1962): Thompson v.8County School Bd., 144 FL. Supp. 239 (E.D, Va.), i 

wom. School Bd. ve Allen, 240 F.2d 539 (4th Cir. 1936), cert. denied, 353 U.S. 

BS 11S, 1 (1958),     
  

  

   



Oc 

  

  

1959] Pupil Assignment Plans 323 

with the awesome constitutional questions of pupil placement which 
so gravely affect public education in the South today. 

“BROWN AND THE AFTERMATH 

The Brown decision? is not a sw eeping edict compelling a reorganiza- 
tion of southern school systems. In one aspect, it simply holds that an 
individual school child has a a constitutional right not to be 
assigned to a public school on the basis of his race. Put affirmativ ely, 
| pupil now has a right to nonracial placement in school. The individual 
ature of the right is suggested by the w ording in the fourteenth amend- 
ment, of which Brown is but an interpretation: “nor shall any State... 
deny to any person within its jurisdiction . the equal protection of the 
laws.” * Furthermore the second Brown opinion speaks of the plain- 
ffs” “personal interest” in admission to public schools on a nonracial 
basis.”® Federal decisions since have borne this out.2? Beyond this 
personal right, however, or perhaps as an aspect of it, the lower federal 
ourts seem to be recognizing a right in Negro school children, en- 
forceable at least by a class action, to have the school system ad- 
ministered free of an enforced policy of segregation irrespective of 

hether any colored pupil has been denied admission to any particular 
school on the ground of his race.?® 

But whatever the content of the Brown right?! the impact of 
decision is potentially immense. T he magnitude of the matter is evi- 
lent from the existence of nearly 3,000 school districts with both 
hite and Negro children where public school systems were lawfully 

operated on a racially separate basis before 1954.22 In the schools of 
than 2,000 of these districts the races are still completely sepa- 

to hear the full kind vy. This article proceeds on the assumption that ( 
not substantially alter the present situation. 

26. Bre v. Board of Educ.. 347 7QU.S. 483 (1954). The second opinion on the 
in of relief, 349 US. 294 (1055). must be read with the original decision. 

27. US. Const. amend. XI goyik (Emphasis added.) See Paur, Law anp (GOVERN- 
[rie Schoor, SeGrecaTIoN DECIsioN 104 (1954) 

2K. B ' v. Board of Fduc., 349 U.S. 294. 300 (1955) (dictum). 
29. Sce rext iccompanying notes 35-42 infra 
30. S flolland v. Board of Pub. Instruction, 258 F.2d 730 (5th Cir, 1958); Orleans 

? 1 School Bd. v. Bush, 242 ih 156 (Sth Cir.), cert, dewied, 3154 US. 921 (1957) ) ) 
20) Rogers, 2 Race Ret. LL: Rep, 1114 (SD. Tex. 1957); text accompanying notes 
58-61 19 tra 

© 1 “. 
. . . . ~ . . 1. This discussion puts to onc side the intriguing matter of time or deliberate speed, 

feets the dimensions of the right itself or only the excercise of the righ. 2) C + 1 1 1 » po ~ } outhern School New SY t., 1958. p- , 

  

  

 



  - -_ _ _mr_™, Cy - rE ~. _—_" oy i Te iii. 

  

    

544 Virginia Law Review [Vol. 45 | 1959] 

troversy is moving to more refined problems of administration and | signm 
application. On these, much future school litigation is likely to center 

ADMINISTRATIVE AND PROCEDURAL ASPECTS he en! 

By all state assignment laws, except in Virginia," the power of 1 C 

initial assignment is lodged in the local school board. A number of 1 

the more important and still evolving constitutional problems in exer- Jue 

cising this assignment power will be discussed here. COU 

First, two nonlegal aspects of assignment procedures ought to be 

noted. One relates to the screening process./' For decades the localities 

involved have had two largely independent | ystems, one for white a 

one for colored} Only the unknowi ing would contend that, immediately 

. following the sudden elimination of the primary assignment basis on 

which the systems were erected, all pupils could be “reassigned on 

completely nonracial basis and the educational process go on unim- 13 

paired. Since such general reassignment is not constitutionally r Rin 

quired,'*® the practical problem for the local school authority is largely | 
one of handling individual requests for assignment or transfer in light 
of the Brown decision. A screening procedure to preserve reasonabl 

educational standards and opportunities for both races is obviously 
dicated. The state’s setting up of procedures and criteria for tl 

purpose is not only a recognition of reality, but it can also be construed 

as a recognition of the binding effect of Brown, rather than as d 
fiance. tif 

Apart from the educational soundness of screening 2ppl icatic 
    

138. Va. Cope ANN. § 22-2321 (Supp. 1958). It is Nnderstood or course 

statute has been held unconstitutional. However, references will be made to It 

purposes of discussing various ways in which assignment statutes have been dr 

At this writing, moreover, there is pending in the General Assembly an AsSIgN 

bill recommended by the Perrow Commission vesting assignment power back mn 

local boards. VirciNnia CommM’N oN Epuc.,, Reporr, March 3119350, 

139. Sec notes 45-50, 52-54 supra. Some statutes expressly allow boards to de 

the assignment power to subordinates. E.g., Avra. Cope tit. 52, § 61(4) (Supp 

Ark. Acts 1959, No. 461, § 4; La. Acts 1958, No. 259, § 4; TExNN. Cope ANN. 

(Supp. 1958). Even without such authorization a board could probably delegate 
| 

% 

function within limits. Sce I'pwarps, THe Courts AND THE PUBLIC SCHOOLS 

(1955). 

140. Sce text accompanying notes 35-42 supra. 

141. “The School Placement Law furnishes the legal machinery for an orderly 

ministration of the public schools in a constitutional manner by the admissiol 

qualified pupils upon a basis of individual merit without regard to their race or ¢© 

We must presume that it will be so administered.” Shuttlesworth v. Birmingham 

of Educ., 162 F. Supp. 372, 384 (N.D. Ala.), aff'd per curiam, 358 U.S. 101 (1938 

  

 



  

  

THE CONSTITUTION AND THE ASSIGNMENT 
OF PUPILS TO PUBLIC SCHOOLS 

Danie J. MEADOR® 

F paramount concern in the southern states at this hour 1s the 

J fate of public education. The crisis at bottom hinges around the 
assignment of pupils to particular school buildings for attendance pur- 

poses. In its larger setting the assignment problem is not new, for in 

every school system with more than one school, orderly administration, 

efficient use of teachers and classrooms, as well as other academic 

considerations, make some method of pupil placement necessary. Until 

now the matter has been handled rather routinely almost everywhere 

by marking off geographical attendance areas for the various buildings. 

In the South, however, toupled with this method has been the factor 

of race. 

From the very beginning the southern states erected their systems of 

public education on a dual basis, relying on the proposition that the 

Constitution permitted separate schools for white and colored chil- 

dren as long as they were substantially equal. Then came the Supreme 

Court’s 1954 decision in Brown v. Board of Education,’ holding the 

placement of pupils in public schools by race to be violative of the 

equal protection clause of the fourteenth amendment. This ruling 

of course has affected the entire educational structure of the South 

in a most fundamental way; and it necessitates remolding the school 

systems if public education is to continue.” The lines which the re- 

molding process is apt to take are suggested by the Brown decision 
OO 

Associate Professor of Law, University of Virginia. Member, Alabama Bar. B.S, 

), Alabama Polytechnic Institute; LL.B., 1951, University of Alabama; LL.M., 1954, 

Harvard University. 

1. 347 U.S. 483 (1954). 
According to a North Carolina committee, “the saving of our public schools re- 

cs action now. To do nothing would, we believe, destroy our public schools. . . . 

ducational system of North Cagplina has been built on the foundation stone of 

tion of the races in the schools. . . . The Supreme Court of the United States 
ed t the school system we had developed—a segregated-by-law system. . . .[We] 8 Y 

are TOOIS TT OF ing the building of a new school system on a new foundation—a foundation 

  

* 

  

segregation by law, but assignment according to natural racial preference 

ministrative determination of what is best for the child.” Norra CArRoLINA 

Comm. oN Epuc., Report, in 1 Race REL. L.. Rep. 581, 582, 585 (1956). 
) ) J  / 

[1517] 

  

  

  

  

  

  

Hy