Lilly, Robert Glenn, Jr.

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Volume 63 | Issue 4 Article 8June 1961Constitutional Law--Public School Desegregation--Pupil Placement PlanRobert Glenn Lilly Jr.West Virginia University College of LawFollow this and additional works at: https://researchrepository.wvu.edu/wvlrPart of the Civil Rights and Discrimination Commons, and the Education Law CommonsThis Case Comment is brought to you for free and open access by the WVU College of Law at The Research Repository @ WVU. It has been acceptedfor inclusion in West Virginia Law Review by an authorized editor of The Research Repository @ WVU. For more information, please contactian.harmon@mail.wvu.edu.Recommended CitationRobert G. Lilly Jr., Constitutional Law--Public School Desegregation--Pupil Placement Plan, 63 W. Va. L. Rev. (1961).Available at: https://researchrepository.wvu.edu/wvlr/vol63/iss4/8CASE COMMENTSConstitutional Law-Public School Desegregation-PupilPlacement PlanJudicial cognizance of the fact that Atlanta public schools hadbeen and were being operated on a racially segregated basis ledto the court's entertaining a submitted plan whereby racial dis-crimination was to be discontinued. The plan effectuates desegrega-tion, beginning at the twelfth grade and extending successively eachyear to a lower grade until all grades are included, requiring atotal period of twelve years. Held, approved. The plan is reason-able and meets the requirement that desegregation take place withall deliberate speed. Calhoun v. Board of Educ., 188 F. Supp. 401(N.D. Ga. 1959). Subsequently, the court decreed that the planshould become effective in September, 1961. Calhoun v. Latimer,188 F. Supp. 412 (N.D. Ga. 1960).P contested the proposed plan in the principal case on threemain grounds: first, that the plan generally failed to satisfy thetests laid down in the second Brown decision. Brown v. Board ofEduc., 349 U.S. 294 (1955); second, that the plan refused a con-sideration of the possibility of threat of disorder among pupils andthe community; and third, that the administrative procedure forapplicants under the plan was inadequate. The first of these isexamined in some detail below. As to the second, the court citedthe Supreme Court which held that, however important it may beto maintain the public peace, it "cannot be accomplished by lawsor ordinances which deny rights created or protected by the federalconstitution." Cooper v. Aaron, 358 U.S. 1, 16 (1958). In con-forming with P's third contention, the court ordered a change of theplan's administrative procedure to insure prompt hearings and re-sults once applications for transfers or placement had been made.For an able discussion of this phase see Meador, The Constitutionand the Assignment of Pupils to Public Schools, 45 VA. L. REv. 517,544 (1959).The first Brown decision declared the fundamental principlethat racial discrimination in public education is unconstitutional andthat all laws requiring such discrimination must succumb to thisprinciple. Brown v. Board of Educ., 347 U.S. 483 (1954). Thesecond Brown decision considered the manner in which relief was[ 354 ]1Lilly: Constitutional Law--Public School Desegregation--Pupil PlacementPublished by The Research Repository @ WVU, 1961CASE COMMENTSto be granted. Brown v. Board of Educ., 349 U.S. 294 (1955). Inthe latter case the court provided that the primary responsibilityfor assessing and solving these problems rests upon the schoolauthorities. The courts are then to determine whether the governingconstitutional principles have been adequately implemented by suchactions. The requirement stressed in the decision was a reasonableand prompt start toward full compliance.Several decisions are in general accord with the principal casein holding that desegregation plans starting at one school gradewhich would include all grades after twelve years comply with therequirements of the second Brown decision. Boson v. Rippy, 285F.2d 43 (5th Cir. 1960); Kelly v. Board of Educ., 270 F.2d 209(6th Cir. 1959), cert. denied, 361 U.S. 924 (1959); Aaron v.Cooper, 243 F.2d 361 (8th Cir. 1957), cert. denied, 357 U.S. 566(1958). However, there are two notable exceptions. The first ofthese is a Delaware case, Evans v. Ennis, 281 F.2d 385 (3d Cir.1960). The court rejected a twelve year plan calling for desegrega-tion commencing at the first grade. The unusual approach of thecourt was that integration in Delaware should not be gauged bythe more restrictive standards applicable to those communities whichhave not advanced so far toward integration. The other rejectionof the twelve year plan was upon entirely different grounds. Bordersv. Rippey, 184 F. Supp. 402 (N.D. Tex. 1960). The Texas court,after an elaborate discussion, concluded that such a plan wouldnecessarily result in an amalgamation which the court consideredthe "most objectionable of all integration features." The court re-jected any integration plan pursued by force, rather pointing outthe need of "integration by consent," resulting from a plan whichwould not provoke a general shifting and transferring of the schoolpopulation. The ultimately approved plan was one in which thosewho desired to integrate might do so, and those who were opposedmight not be forced to do so. In effect, the holding was that thecourt cannot require segregation but may permit it. As stated byMeador, 45 VA. L. REv. supra, such an attitude is not unconstitu-tional as the Constitution "merely forbids discrimination."The West Virginia Constitution provides that "white and col-ored persons shall not be taught in the same school," and a statestatute contains a similar provision. W. VA. CONST., art. XII, § 8;W. VA. CODE, ch. 18, art. 5, § 14 (Michie 1955). While no statestatutes or reported cases are found concerning public school place-1961 ]2West Virginia Law Review, Vol. 63, Iss. 4 [1961], Art. 8https://researchrepository.wvu.edu/wvlr/vol63/iss4/8WEST VIRGINIA LAW REVIEWment plans, it appears quite obvious that West Virginia has not en-countered the many integration problems present in other jurisdic-tions. In general, the state has moved promptly in compliance withthe mandate of the Supreme Court and has the distinction of beingthe first in the southern and border region to comply with the Court'sorder, though, as could be expected, a few of the more southerncounties have been lax in following the prescript. See CharlestonGazette, May 4, 1961, p. 1, col. 8. A practical attitude of co-operation on the part of state and local authorities largely accountsfor the orderly accomplishments attained in the state. This positionis indicated by an opinion of the Attorney General of West Virginia,dated June 1, 1954, concerning integration at West Virginia Uni-versity in particular and in the state in general. The opinion observedthat the above mentioned constitutional and statutory provisionsare "rendered null and void, and are now of no force and effect"because of the Supreme Court decision. 45 W. VA. Ops. ATT'Y.GEN. 725 (1954). By a subsequent letter of June 9, 1954, notreported as an official opinion, the Attorney General held that hisJune 1 opinion applied "also to all state operated schools andcolleges under the jurisdiction of the West Virginia Board of Educa-tion." See Starling v. Board of Educ., 175 F. Supp. 703, 705 (S.D.W. Va. 1959).These decisions serve only to demonstrate that the term "alldeliberate speed" as employed by the Supreme Court in referenceto integration of public schools is a relative one, dependent uponvarying facts and circumstances in different localities. Certainly,the idea here is progress toward elimination of compulsory segrega-tion; but just as certain is the necessity of maintaining a conceptof sound educational standards and a salutary educational atmos-phere. The duty of solving the many and varied local problemsinvolved in establishing racially non-segregated schools is the dutyof the school authorities, and of the public as well. Such problemsconcerned the court in its decree delaying the effective date of thepublic placement plan approved in the principal case. Calhoun v.Latimer, supra, pp. 414-15. For some, this duty connotes an in-evitable deadline of compliance; for others, a choice between segre-gated schools or no public school system at all.Robert Glenn Lilly, Jr.[ Vol. 633Lilly: Constitutional Law--Public School Desegregation--Pupil PlacementPublished by The Research Repository @ WVU, 1961

Constitutional Law--Public School Desegregation--Pupil Placement Plan

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Constitutional Law--Public School Desegregation--Pupil Placement Plan

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