Constitutional Law: The Courts & De Facto

Soon after the Supreme Court’s 1954 ruling that segregated schools are “inherently unequal,” many Negroes hoped that Northern de facto segregation caused by housing patterns would be labeled just as unconstitutional as Southern de jure segregation enforced by law. They learned how wrong they were last spring when the court refused to review the only case of de facto segregation that has yet reached it—a lower-court decision that Gary, Ind., was not obliged to desegregate 17 schools with enrollments that ranged from 77% to 100% Negro.

The fact is that the Constitution no more requires integrated schools than it guarantees neighborhood schools. It does not even mention the word education. It simply requires equal protection by the laws under the 14th Amendment, meaning in this context that it forbids state-enforced discrimination on the grounds of race.

Intentional school segregation is thus unconstitutional—whether by Southern law or Northern gerrymander, as New Rochelle, N.Y., discovered in 1961 when the school board was found in a federal district court to have deliber ately drawn school-district attendance lines to keep an elementary school 94% Negro. (A circuit court of appeals upheld the decision; the Supreme Court refused to review.) By contrast, unintentional school segregation that merely reflects the local neighborhood is still constitutional—at least until the Supreme Court disagrees.

Aggressive Administrators. All this leaves Northern school officials with a choice: they can refuse to remedy de facto, as the state superintendent of public instruction did last year in Illinois, or they can move aggressively against it, as they are doing in some parts of New York, New Jersey and California. Whenever they have acted with dispatch, however, the inevitable hurt feelings and protests against their efforts have confronted state courts with groundbreaking questions. If integration is not constitutionally required, can school officials even consider racial factors in making pupil assignments? Is it discrimination against whites, for example, to switch Negro pupils to a previously all-white school?

The courts’ unfolding answer is to uphold Northern integration efforts—provided the plans of school administrators have a fair and rational basis.

The most significant cases to date have come out of New York. Last year the New York City Board of Education drew the attendance lines for a new Brooklyn junior high school in such a way that its enrollment would be one-third Negro, one-third Puerto Rican and one-third “other” (non-Puerto Rican white). Parents of white children forced to leave their old school for the new one argued in court that the board was violating a state education law providing that “no person shall be refused admission into or be excluded from any public school in the State of New York on account of race, creed, color or national origin.”

Vindicated Power. The whites won in the trial court, but the board’s case was sustained in the state’s highest court, the New York Court of Appeals, which ruled that the zoning plan was constitutional and should not be frustrated by using an antidiscrimination law, in effect, as a segregation law, “a result exactly opposite to its purpose.” Moreover, the court noted that the white children would have to walk no farther to the new school than the old one. By a conventional court test of administrative rulings, the zoning plan was upheld because it was not “arbitrary, capricious or unreasonable.”

A similar decision vindicated the power of New York’s state education commissioner to balance a 75% Negro elementary school in Malverne, L.I., by ordering the school board to set up a town-wide “Princeton Plan”—sending all pupils of three grades to one school, all pupils of another two grades to another school, and so on. The education commissioner’s order, said the state courts’ intermediate-level appellate division, may evoke “strong, emotional, negative reactions in persons of contrary views,” but that “does not make his decision arbitrary.”

First-Round Limits. By now, New York’s lower courts have gotten the message. In Queens, the first-level State Supreme Court has just upheld the board of education’s “pairing” plan to redistribute Negro and white pupils between two schools that are only five blocks apart. The pairing plan is unlikely to produce “oppressive results or hardships,” ruled the court, and may in fact produce more teachers and smaller classes for pupils of all races.

Thus in New York, school officials have won court sanction to attack de facto segregation within at least prudent and reasonable limits. But the Supreme Court has not yet spoken.