E Negroes from taking part in its There has been a similar development with regard to the right of Negroes to serve on juries. The latest and most farreaching decision held it was not enough for Dallas County to put exactly one Negro on every grand jury. Nor was a system proper by which the grand jury commissioners picked persons for the jury whom they knew personally to be qualified, when the commissioners were acquainted with examples it may be concluded that it will not be enough that a system is provided by which Negroes may theoretically attend school with white children, nor even that a few Negroes are so admitted. Instead, as was said in the Dallas grand jury case. “The basis of selection cannot consciously take color into account. Such is the command of the Constitution.” \(1 .which consciously takes. color into account, any plan which is enforced in a discriminatory manner though fair on its face, will be held invalid. 4.In passing on the validity of a statute, a court is not confined to the bare words of the law, but may. consider all evidence as to the purpose of the statute. No matter how laudable to professed goals of a statute, it will not survive constitutional attack if the court fairly concludes that its real purpose is to preserve segregation. Judges will not “shut our eyes to what all others than A few years ago Alabama adopted a constitutional amendment which purported to make a general requirement, applicable to everyone, for registration as a voter. But when the local federal court found that the circum stances and history surrounding the -origin and adoption of the amendment, as well as the campaign material used to secure its adoption, showed that its purpose was to keep Negroes from voting, it held the amendment unconstitutional, and the Supreme Only this year a Virginia statute providing for transfer of school pupils was held unconstitutional because the court found, from examination of the report of a legislative commission, a speech by the governor, and other laws enacted at the same time, that the purpose of the law was to 5.Persons cannot go to the courts for relief against a claimed deprivation of their constitutional rights until they have exhausted the administrative remedies which the state provides and have been unable to vindicate’ their rights through those remedtive remedies need not be exhausted if they are obviously which on its face is intended to preserve segregation or are so time-consuming as to be unduly ute is too indefinite to proVide guidance for those who are to administer the state remed6.There is another possible proposition which deserves mention. Shortly after the Supreme Court held segregation unconstitional, a distinguished federal court said of that: “The Consti-. tution, in other words, does not require integration. It merely forwords have been widely quoted throughout the South, not only by courts but also by legislative commissions and others interested in preventing integration. I believe that the quoted passage is not useful ‘for analyzing the proposed Texas legislation because, as commonly interpreted, the court’s remark begs the question. It assumes that there is some third choice available other than segregation or integration, and this is the very question which we must decide. It is worthy of note that not a single plan for dealing withthe schools other than by integration has yet received approval of any court. Until a plan is found which ends segregation without requiring integration, it seems to me safer, as well as more logical, to assume that these are mutually exclusive alternatives. In the light of these propositions, it is now possible -to evaluate the bills being considered by the Legislature. BILLS “Negro” shall be included in computing the number of pupils in the school in order to determine how many teachers are to be allotted to it. It is true, as the Governor’s Advisory Committee on Segregation says, that “the courts have not undertaken the task of directing the legislature as to how the schools are to be financed.” But it is also true that the Constitution prohibits the legislature from taking race consciously into account in its decisions. If School A, with 100 students, receives twice as miuch state aid as School B, which also has 100 students, and the only reason for the difference is that all the pupils in School A are of the same race, while the enrollment of School B is equally divided between the races, then the students at School B, white and black, have been denied the equal protection of the laws. Pupil Assignment Laws Four of the bills before the Legislature are examples of a type legislation, now very popular in the South, known as “pupil assignment” or “school placement” laws. The general theme of such laws is that broad powers are given to the local authorities to assign students to various schools. Any application to transfer from one school to another must be passed on by the local authorities, who are given a long list of factors to consider. If such a transfer is denied, or if the initial assignment is unsatisfactory, provision is made for administrative appeals. Bills of this sort do not overtly preserve segregation. If they said that the authorities were to assign all of one race to one school, and all of the other race to another school, they would carry their own death warrant on their face, under Propositions One and Three stated at the outset. The popularity of such legislation stems, rather, from two factors. First, it is the obvious hope of the draftsman that the criteria other than race which they direct the local authorities to consider, such things as “the home environment of the pupil,” “his compatibility with the children in that school,” and “the adequacy of the pupil’s academic preparation for admission to a particular school and curriculum,” will result in all Negroes ending up in one school and all whites in another. But here it would seem that a dilemma is posed. If this is the result, if these elaborate ‘ statutes are merely a subterfuge for the preservation of segregation, then the courts, under the third of the propositions stated at the beginning, will hold schemes unconstitutional. This in fact has already occurred with regard to a rather naive form of such a law this is not the result, if assignments are made on a really nondiscriminatory basis which ,takes into account only valid educa-. tional factors, if white and Negro students are freely intermingled, the draftsmen of such bills are likely to be keenly disappointed in their product. But there is another element to be considered. As seen in Proposition Five, persons must exhaust the4 -administrative remedies before seeking court relief against unconstitutional action. Federal courts have refused relief in cases arising from Maryland, North Carolina, and South Carolina because the persons involved had not gone’ through the administrative procedure set hp by the state and been denied assign, Thus it is thought that the re quirement of exhaustion of ad’ ministrative remedies will surely delay, and may permanently deter, Negroes from gaining admittance to white schools. So they may, though in other cases from New Orleans, Charlottesville, Arlington, and Newport News it has been held that one of the exceptions stated in Proposition Five applied, and that exhaustion of the administrative remedies was There are important differences among the four pupil assignment laws now before the legislature. Indeed they are so different, even contradictory, that it is hard to believe that the legislature can intend to adopt all four. These differences bear importantly on whether the bills would be regarded as unconstitutional on their face, or otherwise so defective that exhaustion of administrative remedies would not be necessary. H. B. 333 seems surely unconstitutional. It calls for designation of schools as “white” or “Negro,” requires a tentative assignment according to race, and provides absolutely no standards whatever to guide the school authorities in passing on applications for transfer. Even assuming that the lack of the standards is, made up by other bills by the same authors which set out a detailed transfer procedure, the initial assignment according to race is bad on its face. The Constitution is not satisfied by letting a few Negroes attend white schools, any more than it is by putting exactly one Negro on every grand jury. Instead it requires that race be not consciously taken into account, and race surely has been taken into account when the initial assignment, though called tentative, is based exclusively on race. Two other bills, H. B. 231 and H. B. 237, are less overtly discriminatory but still carry so many evidences that they are in-. tended to deter integration that they are not likely to survive attack. H. B. 231 is virtually identical to an Alabama statute which has not yet been tested in mention race one way or the other in the long list of factors to be considered on applications for transfer, it does provide, in Section 8, that no child shall be compelled to attend any school in which the races are commingled. And in Section 3 it denies authority to local boards to carry out “any order” requiring admission of students to a particular school except on the boards own finding that such admission is consistent with public policy. It should not be hard to see in this an attempt to preserve segregation. This comes close to held Virginia plan, al transfers were to be made in the interests of “efficiency,” where another statute declared that only segregated schools are “efficient” schools. H. B. 237 contains an explicit statementsurprisingly lacking in H. B. 231 that “race or color is not a reasonable factor” in passing on applications for transfer. But it gives the lie to this in the very next section by stating that a child may transfer from a school designated for the other race to one designated for his own race without needing to have the permission of the local board. If, as the bill provides, eleven specific elements “and any and all other reasonable factors which the local board sees fit to take into consideration” are relevant hi transferring from School A to School B, why are they not relevant in going from School B to School A? The only answer given by the bill is that in the latter instance the student is seeking to transfer to a school designated for his own race. But just as the legislature cannot require students to attend a school provided only for their own race, so it cannot make it harder to gain admission to a school attended by students of the other race than it is to gain admission to a school for the applicant’s own race. “The basis of selection cannot consciously take color into account.” The final pupil assignment bill is H. B. 831, easily the bestdrafted of all the bills and the one most likely to be upheld by the courts. Considered in a vacuum, it is completely unobjectionable. It purports to be addressed to “the problems of increasing enrollment and of making maximum use of limited school facilities.” It states specifically that race or color are not to be considered in assigning students. The initial assignment, Unless the school board orders otherwise on an individual basis, is to be on a geographic basis, rather than on existing patterns of segregation. Unlike the other three assignment bills, there is nothing in the bill itself to indicate that it is an attempt to preserve segregation. Because the bill is proper on its face, it is probable that persons claiming discrimination under it will be required to exhaust their administrative remedies, which in this case cannot take more than a not-unreasonable 75 days. And if the bill is administered in good faith, it might well be a perfectly proper and desirable means of making the transition from segregated to integrated schools. If it is administered in bad faith, if local boards find that “the moral, ethical and cultural background” of every Negro in, the area is so different from that of every white child as to require assignment to different schools, the courts will be able to remedy the situation. If there is a valid criticism of H. B. 831, it would stem from the other bills considered at the same time. Under Proposition Four at the beginning of this analysis, it was shown that the courts will look to other materials, including other legislation enacted at the same time, to give meaning to the bare words of a law. Indeed the report of the Governor’s Advisory Committee, on which all of these bills are based, says: “These measures cannot be considered as separate measures but must be viewed as a whole. They are designed to be most effective when utilized thusly.” Viewed as a whole, the entire package is replete with evidence that it is an attempt to preserve segregation. The Advisory Committee itself has called on local officials to “utilize every legal means at their command to avoid and circumvent compliance, and to maintain a dual school system so long as the people of this State and the local communities desire it.” H. B. 232 states that “forced integration” is “contrary to rights of the individual.” H. B. 235 makes a similar announcement. H. B. 236, authorizing the Attorney General to defend integration suits, recites that “existing and future laws, rules and action maintaining segregated schools and avoiding forced integration can be effective only to the extent same are enforced and prompt defense made to any at
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