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The Brown decision shattered previous court precepts but not the South's belief in segregation. Belief begat the will to resist.

The legal justification of resistance took many forms. The doctrine of "interposition" was invoked, as noted later. Impeachment of members of the United States Supreme Court was recommended, on grounds of alleged usurpation of constitutional powers. The validity of the Fourteenth Amendment, the very heart of the School Segregation Cases opinion, was questioned. The attitude was adamant and the arguments ingenious."

(1) Exceptions

While other Southern States were busily laying a theoretical foundation to justify non-compliance, Texas and North Carolina enacted no interposition resolutions and called for no impeachment of Supreme Court justices. Neither did they argue that the Fourteenth Amendment was invalid.

The Texas State Board of Education issued a statement of policy on July 4, 1955, leaving the matter of desegregation within the discretion of local school officials.1

The North Carolina Advisory Committee on Education, appointed pursuant to a resolution of the North Carolina Legislature, issued its report on April 5, 1956, declaring that "the decision of the Supreme Court of the United States, however much we dislike it, is the declared law and is binding upon us." 2

(2) Interposition

The doctrine of interposition as invoked by the Southern States in this instance asserts the right of any state to interpose its sovereignty to prevent or arrest contested action by the Federal government within its borders. This is a theory of American Constitutional law which has often been advanced but never authoritatively validated.

Alabama, Arkansas, Georgia, South Carolina, Mississippi, Tennessee, Virginia, Louisiana, and Florida enacted interposition resolutions in 1956 and 1957. The resolutions varied somewhat in form, but

11 Race Rel. L. Rep. 261 (1956).

2 N.C. Laws 1955, p. 1692, Res. 29.

North Caroline Advisory Committee on Education, Report to the Governor, General Assembly, State Board of Education, and County and Local School Boards, April 5, 1956, 1 Race Rel. L. Rep. 581 (1956).

Ala. Laws 1st Ex. Sess. 1956, p. 70, No. 42; Ark. Laws 1956, Proposed Constitutional Amendment No. 47, 1 Race Rel. L. Rep. 1117 (1956) (approved and enacted in general

all agreed in classifying the School Segregation Cases decision as an invasion by the Supreme Court of the process of amending the United States Constitution. All called for action by other states to stop the Supreme Court's encroachment upon the reserved powers of the states. All announced, furthermore, the intention to avoid this "illegal" encroachment.

(3) Other juridical attacks justifying non-compliance

The Senate of Georgia attacked the validity of the Fourteenth and Fifteenth Amendments and petitioned Congress to declare them invalid because Southern Senators and Representatives had been excluded from the 39th, 40th and 41st United States Congresses.*

The lower house of the Georgia legislature passed a resolution calling upon the State's Representatives in Congress to introduce a resolution of impeachment against the Chief Justice and five of the Associate Justices of the United States Supreme Court. Fifteen charges of usurpation of power were made, citing 15 United States Supreme Court decisions, including those in the School Segregation Cases.5

The State of Florida proposed an amendment to the United States Constitution giving the United States Senate appellate jurisdiction over decisions of the Supreme Court where the powers of a State were involved or where a State was a party or otherwise interested in a case. Florida further proposed that the Tenth Amendment of the United States Constitution be amended to state that the maintenance of "harmonious race relations" be included within the police powers reserved to the States, together with powers to regulate education within their borders."

In spite of the onslaught of Federal power, these Southern States moved on from constitutional theory to the practical task of maintaining segregation by various legislative means.


(1) Planning legislation

The desire to resist desegregation caused certain States to call into being various commissions and committees to study ways and means.


election November 6, 1956); Ga. Laws 1956, p. 642, No. 130; S.C. Acts 1956, p. 2172, No. 914; Miss. Laws 1956, ch. 466, p. 741; Tenn. Acts 1957, H.R., Jan. 17 & Jan. 22, 1957, 2 Race Rel. L. Rep. 228 & 481 (1957); S. Res. 3; Tenn. Acts 1957, p. 1573; Va. Acts 1956, p. 1213; H. Con. Res. 10; La. Laws 1956, 1 Race Rel L. Rep. 753 (1956); Fla. Laws 2d Ex. Sess. 1956, p. 401; Fla. Laws 1957, p. 1217.

Ga. Laws 1957, p. 348, No. 45.

Ga. Laws 1957, p. 553, No. 100.
Fla. Laws 1957, p. 1191.

* See Hearings on Pending Civil Rights Bills Before a Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, 86th Cong., 1st Sess., 1959, pp. 89-105 (Compilation of Recent State and Local Laws, Resolutions, Ordinances, and Administrative Policies, with Comments by Mr. J. Francis Polhaus, Counsel, Washington Bureau, National Association for the Advancement of Colored People). Fla. Laws 1957, p. 1252. T These bodies adopted a variety of names.

South Carolina had early provided for the Gressette Committee, which published a series of reports recommending many items of school segregation legislation.

A Georgia Commission on Education was created in 1953, and its powers to prepare legislation were extended in 1957.10

A Florida Special Advisory Committee, appointed by the Governor to recommend legislative action, rendered its report on July 16, 1956.11 Mississippi in 1956 and Arkansas in 1957 created State "Sovereignty Commissions" to resist Federal usurpation of the rights and powers reserved to the States.12

Louisiana created a Joint Legislative Committee in 1954 13 and in 1956 extended its life for the purpose of "carrying on and conducting the fight to maintain segregation of the races" in the State,1 by compiling data and drafting legislation.

The first flurry of legislative activity in Alabama resulted in such a mass of overlapping and conflicting bills that a Legislative Coordinating Committee was created in the 1957 Legislature.


In Texas, on July 27, 1955, the Governor appointed a Texas Advisory Committee to examine the following three major problems:

1. The prevention of forced integration.

2. The achievement of maximum decentralization of school authority.

3. Ways in which the State Government may best assist local school districts in solving their problems.

The Legal and Legislative Subcommittee of this group rendered its report and recommendations on September 24, 1956.16

A North Carolina Advisory Committee on Education was created in 1955,1 and issued its report on April 5, 1956.18 Less than three months later, on June 19, 1956, the Governor issued a proclamation calling for an extraordinary session of the legislature to consider measures recommended by the Committee.19

The Governor of Arkansas appointed a Special Committee to make recommendations for official action with respect to racial integration

*S.C. Laws 1956, Act 927 (formerly S. Con. Res. S-371 of 1951); Interim Report No. 1, July 28, 1954; Interim Report No. 2, Jan. 11, 1955; Interim Report No. 3, Dec. 14, 1955; Interim Report No. 4, Jan. 31, 1956; Interim Report No. 5, Feb. 28, 1958, see generally 3 Race Rel. L. Rep. 338-340 (1958).

Ga. Laws 1953, p. 64.

19 Ga. Laws 1957, p. 56.

"Florida Special Advisory Committee, Report to the Governor, July 16, 1956; 1 Race Rel. L. Rep. 921 (1956).

13 Miss. Gen. Laws 1956, ch. 365, p. 520; Ark. Laws 1957, p. 271, No. 83.

13 La. Acts 1954, H.R. Con. Res. 27.

14 La. Acts 1956, H.R. Con. Res. 29; 1 Race Rel. L. Rep. 755 (1956).

15 Ala. Laws 1957, p. 170, No. 119.

19 Report of the Legal and Legislative Subcommittee of the Texas Advisory Committee on Segregation in the Public Schools, Sept. 24, 1956, 1 Race Rel. L. Rep. 1077 (1956). 17 and 18 Op cit. supra note 3.

11 Race Rel. L. Rep. 728 (1956).

in the public schools. The Committee made its report on April 24, 1956.20

On August 30, 1954, the Governor of Virginia appointed a Commission on Public Education, popularly known as the "Gray Commission," which reported on November 11, 1955.21

As may be seen by the initial dates of some of these committees or commissions, there had been apprehension in parts of the Deep South for some time prior to the rendition of the opinions in the School Segregation Cases, and legislative thought had been given to possible methods of evasion. Indeed, Mississippi as early as 1952 created a Legislative Recess Study Committee for the purpose of studying its existing school laws, school programs, and school policies.22 The intent was to make recommendations for the continued segregation of the races in the public schools. This included consideration of equalization of school facilities and provision for salary schedules for teachers, in a hurried attempt to make the Negro schools equal while separate.

(2) Justifying segregation as an exercise of police power

Louisiana in 1954 amended Article XII, Section 1, of its Constitution 23 to specify that the provision for separate public schools was not, as originally stated, on a basis of race but rather in the exercise of state police power to promote and protect the public health, morals, better education, and the peace and good order of the State. This amendment also ordered the legislature to provide for a public education system for the State. Subsequent legislation directed the State Board of Education not to approve any public school violating this principle of separation.24

The efficacy of Louisiana's constitutional amendment and implementing legislation was short lived. In 1957, the Fifth Circuit Court of Appeals ruled that the Louisiana Constitution and statutory provisions were not a proper exercise of state police powers, because it would be unconstitutional to use such powers as a means of depriving any person of his rights as defined in the School Segregation Cases.25 The United States Supreme Court declined to review this action.26 (3) Withdrawal of State's consent to be sued

On the premise that a state cannot be sued without its consent, under the Eleventh Amendment to the United States Constitution, the state legislature of Louisiana sought to forestall suits for the admission of Negroes into white schools. In 1956, by an amendment to the State

20 Id. at 717.

21 Id. at 241.

22 Miss. Laws 1952, ch. 453, p. 737.

23 La. Acts 1954, p. 1338, No. 752.

24 La. Acts 1954, p. 1034, No. 555.

25 Orleans v. Bush, 242 F. 2d 156 (5th Cir. 1957).

20 354 U.S. 921 (1957).

Constitution adopted in November, the State withdrew its consent to suits against certain state agencies, including those concerned with recreation and education.27

The legal theory behind this contention was shattered in 1957 28 by a decision of the United States Court of Appeals, which held that desegregation cases brought in a federal court against a local school board are not suits against the State to compel State action. Rather, such cases seek to prevent State officials from acting in a manner which the plaintiffs consider to be in violation of their rights under the Federal Constitution. The Court further stated that if, in fact, the laws under which the local board is purporting to act are invalid, then the board is acting without authority from the State and the State is hence not involved. The Court held that the laws under which the local board purported to act in implementing segregation were invalid.

(4) Closing the schools before imminent desegregation

In order to legalize the closing of any public schools that might be integrated or desegregated, the compulsory school attendance laws of the several states required changes.

South Carolina 29 and Mississippi 30 repealed their compulsory school attendance laws in 1954 and 1956, respectively. Louisiana, through amendment, permitted suspension of its attendance law if either a public school or a private day school should be ordered to desegregate.31 Alabama, on the other hand, did not repeal or suspend the compulsory attendance law but gave each child, through its parent, legal guardian, or custodian, the right to choose whether or not to attend a school provided for members of its own race. 32 Georgia in 1957 granted the Governor the right to suspend the compulsory school attendance law whenever in his opinion it was necessary because of riot, insurrection, public disorder, disturbance of the peace, natural calamity, or disaster.33

Florida, Virginia, and Texas provided for the closure of their public schools whenever military forces were employed under federal authority in the vicinity of a school.34 Florida further provided for local boards of public instruction to take action in transferring pupils in the event of such a closure.35 The clear implication of this act was that compulsory school attendance laws would be suspended if it were not feasible or possible to transfer pupils when their school was closed.

27 La. Added Acts 1956, p. 1159, No. 613.

* See note 25 supra. Accord, School Board of City of Charlottesville v. Allen, 240 F. 2d 59 (4th Cir. 1957).

29 S.C. Laws 1954, p. 1695.

30 Miss. Laws 1956, ch. 288, p. 366.

La. Laws 1956, p. 68, No. 28.

Ala. Laws 1956, p. 446, No. 117.

33 Ga. Acts 1957, p. 168, No. 139.

"Va. Acts 1958, ch. 41, p. 26; Tex. 2d Ex. Sess. 1957, ch. 7, p. 161.

Fla. Ex. Sess. 1957, ch. 1975, p. 10.

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