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of the proposed bills, other than the constitutional issue of congressional control over the courts. But first, some retracing of recent history is necessary to know how we arrived at where we now stand.

THE 1954 BROWN DECISION AND CONSEQUENT STATE EFFORTS TO CURB THE FEDERAL COURTS

Until 1954, the District of Columbia and some seventeen states required a dual segregated system of public education, and four additional states permitted segregation on a local-option basis. The legal justification for a segregated school system rested on an analogy to the 1896 decision in Plessy v. Ferguson,” in which the Supreme Court had sustained the constitutionality of a Louisiana statute requiring separate but equal accomodations for white and black railroad passengers.

In 1954, the issue of segregated public schools was brought to the Supreme Court in five different cases that arose in Kansas, South Carolina, Virginia, Delaware, and the District of Columbia. In Brown v. Board of Education, a unanimous Court refused to "turn the clock back... to 1896 when Plessy v. Ferguson was written" and held that the forced segregation of Negro school children "from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone."32 The Court concluded that "in the field of public education the doctrine of 'separate but equal' has no place. Separate educational facilities are inherently unequal."33

The first shoe was dropped." But "because of the great variety of local conditions involved in the five cases before it, the Supreme

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Pollitt, Equal Protection in Public Education: 1954-61, 47 AAUP BULL. 197, 198 (1961). 163 U.S. 537 (1896).

3347 U.S. 483 (1954).

31Id. at 492.

Id. at 494.

"Id. at 495.

"The general initial reaction was one of resigned acceptance. The Governor of West Virginia immediately announced that his state would abide by the Brown decision. Governor Cherry said: "Arkansas will obey the law-It always has." Governor Whetherby announced that "Kentucky will do whatever is necessary to comply with the law." Oklahoma's Governor Raymond Gary warned that the school boards then contemplating defiance would get no aid or comfort from him; and similar statements were issued by the Governors of Virginia, North Carolina, and other southern states. See Pollitt, supra note 23, at 200-01 & n.30.

35347 U.S. at 495.

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Court put off the task of issuing an order until it could hear the views of all the parties (and interested intervenors) as to the appropriate next step. In 1955 the order came down." The Court recognized that the termination of a segregated school system "may require solution of varied local school problems" and that the local school boards had the best knowledge and therefore the primary responsibility to resolve these problems." Accordingly, the Supreme Court remanded the cases to the courts in which they had originated, with instruction that the local courts require the local school boards to "make a prompt and reasonable start" toward ending segregation and that the local courts maintain jurisdiction to ensure the admission of Negro students to the public schools on a racially nondiscriminatory basis "with all deliberate speed."

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By then, resistence in sone quarters had mounted to a fever pitch. Mob violence erupted when Autherine Lucy sought to enroll at the University of Alabama," when James Meredith attempted to enroll at the University of Mississippi," and when nine black students enrolled at the “white” high school in Little Rock, Arkansas. Governor Faubus put the Little Rock school "off limits" to "colored" students, ugly crowds drove the black children away," and President Eisenhower dispatched federal troops to enforce the federal court "desegregation" order." The resulting chaos, bedlam and turmoil' " was cited as justifying a postponement of the school integration," but the Supreme Court said "no." The Court ruled as follows:

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

"Id. at 299. Contrast the proposal of President Nixon that the Congress "specify appropriate remedies for the elimination of the vestiges of dual school systems" throughout the land, wherever they exist. H.R. 13915, 92d Cong., 2d Sess. § 3(b) (1972).

349 U.S. at 300-01.

"Pollitt, supra note 23, at 201.

"James Meredith was not the first black to attempt enrollment at the University of Mississippi. Clennon King was the first. He was arrested while standing in line at the administration building and taken to a nearby state mental hospital for examination. Clyde Kennard was the second. He was arrested and later convicted of reckless driving as he approached the administration building. The first Negro to apply for admission to the University of Georgia was suddenly inducted into the Army, despite previous exemption due to physical disability; and another, after nine years of litigation and a Supreme Court decision in his favor, discovered that he was unable to qualify for admission to the University of Florida Law School under recently enacted admission standards. Pollitt, supra note 23, at 201.

"Cooper v. Aaron, 358 U.S. 1, 9-12 (1958).

"See Pollitt, Presidential Use of Troops to Execute the Laws: A Brief History, 36 N.C.L. REV. 117 (1958).

358 U.S. at 12-13.

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The constitutional rights of [Negro school children] are not to be sacrificed or yielded to the violence and disorder which have followed upon the actions of the Governor.

....

. . [T]he constitutional rights of children not to be discriminated against in school admission on grounds of race or color . . . can neither be nullified openly and directly by state legislators or state executive or judicial officers, nor nullified indirectly by them through evasive schemes for segregation whether attempted "ingeniously or ingenuously."

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And there were indeed many schemes, ingenious and ingenuous, to thwart the Supreme Court school integration decisions. First came the "interposition" or shocked-indignation statutes. In the legislative sessions of 1956 and 1957, some nine Southern states enacted interposition resolutions. Although they varied in detail, all condemned the Brown decision as an unconstitutional usurpation of legislative authority by the Courts, and all called for the state to “interpose" itself between the state citizens and the federal courts." In 1960, the Supreme Court agreed with the federal district court in New Orleans that “interposition is not a constitutional doctrine. If taken seriously, it is an illegal defiance of constitutional authority." 46

Then came a number of efforts, like the current Nixon proposals, designed to "curb" the federal courts in the area of school desegregation. First were the "get the judges" proposals. Since it was the federal courts that had ended segregated education (neither the Congress nor the President had taken any steps in this direction), the "logical" move by segregationists was to cleanse the courts of the "misguided" judges. "Impeach Earl Warren" signs appeared all over the South, and Georgia lead the way with a legislative resolution calling upon Congress to initiate impeachment proceedings against all the Justices of the Supreme Court.47

There was a parallel move to limit or eliminate entirely the power of the federal courts to rule on school segregation matters. Florida proposed a constitutional amendment that would have made all Su

"Id. at 16-17.

"Pollitt, supra note 23, at 201. Compare the preamble of the Nixon Moratorium bill: "There is a substantial likelihood that... many local educational agencies will be required [by the courts] to implement desegregation plans that impose a greater obligation than required by the fourteenth amendment.. ." H.R. 13916, 92d Cong., 2d Sess. § 2(a)(5) (1972).

"United States v. Louisiana, 363 U.S. I (1960).

"See Pollitt, supra note 23, at 202.

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preme Court decisions in this area reviewable by the United States Senate. Senator Eastland of Mississippi introduced legislation to deprive the Supreme Court of its appellate jurisdiction to hear school desegregation cases. This bill was defeated in the Senate by the narrow margin of forty-one to forty."

There were a number of additional efforts to prevent the federal courts fron exercising jurisdiction. Louisiana "withdrew" its consent to be sued without prior legislative approval of each proposed law suit. Alabama declared that school boards are "judicial” bodies and, ergo, are immune from suit. Arkansas, Georgia, Louisiana, Texas, and Virginia authorized their governors to "seize and operate" the various school systems, with the hope and expectation that a suit against the governor would be considered to be a suit against the state and hence beyond the jurisdiction of the federal courts under the eleventh amendment.50

"Barratry" and "champerty" laws were enacted to disbar the attorneys who filed school integration suits," and companion laws were passed to "get" the NAACP, which generally financed the law suits. These latter laws took many forms. Some required the discharge from state employment of all those who belonged to or contributed to the NAACP.52 Others merely required the public disclosure of all members and contributors, with the hope and expectation that public pressure would do the job.53 State sovereignty commissions, un-American activities committees, commissions on education, and similar state agencies were established to investigate "racial activities."54 The chairman of the Virginia committee announced that his investigations would be devastating to the NAACP, would "bust that organization . . . wide open,' 55 and could be used to keep the NAACP out of litigation, which is the heart of the organization.

But the federal courts, with the total support of the Supreme Court, stood firm in the face of this state legislative onslaught. All the above,

Id.

"Id; see Pollitt, Should the Supreme Court be Curbed? A Presentation of Civil Liberties

Decisions in the 1957-58 Term, 37 N.C.L. Rev. 17 (1958).

Pollitt, supra note 23, at 202.

"See, e.g., NAACP v. Button, 371 U.S. 415 (1963).

2See, e.g., Shelton v. McKinley, 174 F. Supp. 351 (E.D. Ark. 1959).

See, e.g., Shelton v. Tucker, 364 U.S. 479 (1960).

"See, e.g., Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539 (1963). "Scull v. Virginia, 359 U.S. 344, 347 (1959).

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and similar schemes for defeating the orderly processes of school desegregation, were declared unconstitutional. And, with the passage of time, the Supreme Court began to press for results.

In 1964 the Supreme Court ruled that "[t]he time for more 'deliberate speed' has run out. . . ." In 1968 it ruled that "[t]he burden on a school board today is to come forward with a plan that promises realistically to work, and promises realistically to work now. "57 In October 1969 it ruled that “the obligation of every school district is to terminate dual school systems at once and to operate now and hereafter only unitary schools." 5 In December 1969 the Supreme Court denied two requests for more delay, because "[t]he burden on a school board is to desegregate an unconstitutional dual system at once. 9150

"Griffin v. County School Bd., 377 U.S. 218, 234 (1964). This case involved Prince Edward County, Virginia, one of the defendants in the 1954 Brown decision. After that adverse opinion, the county officials had closed the public schools and had contributed public support to “private” segregated white academies, leaving the black population substantially without any educational opportunities. The Court ordered the local school board to reopen the public schools and to cease giving financial assistance to the parents of the white children attending the "private" schools.

"Green v. County School Bd., 391 U.S. 430, 439 (1968) (emphasis by the Court). Here, the Supreme Court held that a "freedom of choice" plan that allows the individual pupil to choose his own public school does not constitute adequate compliance with the decision in Brown v. Board of Educ. There were two schools in the county and no attendance zones. Under the "freedom of choice" plan, all the white children chose the school formerly restricted to whites, and all but a handful of the black children selected the school formerly restricted to blacks. The Court ordered the school board "to convert promptly to a system without a 'white' school and a 'Negro' school, but just schools. 391 U.S. at 442.

Alexander v. Holmes County Board of Educ., 396 U.S. 19 (1969) (per curiam). In early July, the court of appeals ordered a number of Mississippi school systems to desegregate by the opening of the coming school year. In late August, the Department of Justice (on the recommendation of the Secretary of the Department of Health, Education, and Welfare) moved the court of appeals to delay the date of the integration order, and the court of appeals did so. See Alexander v. Holmes County Bd. of Educ., 396 U.S. 1218 (Black, Circuit Justice, 1969). The Supreme Court reversed and directed the school systems "immediately to operate as unitary school systems within which no person is to be effectively excluded from any school because of race or color." 396 U.S. at 20. "Dowell v. Board of Educ., 396 U.S. 269, 270 (1969) (per curiam); accord, Carter v. West Feliciana Parish School Bd., 396 U.S. 226 (1969) (per curiam). In Carter, the court of appeals on December 1, 1969, ordered certain plans for the desegregation of three Louisiana school districts but postponed the effective date of the plans until the school year of 1970-71. The Supreme Court reversed and ordered the plans implemented by February 1, 1970. In Dowell, the district court on August 13, 1969, ordered the revision of some school attendance boundaries by September 2, 1969. On August 27 the court of appeals reversed the "partial pian." The Supreme Court in turn reversed the court of appeals because the school board must "desegregate an unconstitutional dual system at once." 396 U.S. at 270 (emphasis added).

In Keyes v. School Dist. Number One, 396 U.S. 1215 (1969), the court of appeals had postponed a desegregation order "on the premise that public support for the plan might be developed" during the period of delay. Id. at 1217. Mr. Justice Brennan, sitting as a Circuit Justice,

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