1961 US Commission on Civil Rights Report Book 2 - University of ...

given authority to call an election on the question, and thereafter to
suspend the operation of one or more, or all, of the public schools under
their jurisdiction.
Georgia and Louisiana enacted similar statutes in <strong>1961</strong> *° establishing
local option procedures for the closing and reopening of public schools
in desegregation crises. The Louisiana statute was found unconstitutional
by a three-judge court on August 30, ig6i. 41
By early 1959 compulsory school-closing laws had proven vulnerable
to constitutional attack in the courts. Schools in both Virginia and
Arkansas were reopened after the courts struck down the laws under
which they were closed; and the emphasis of subsequent legislation, by
and large, shifted to new strategies of resistance. 42 School-closing laws
of the local option variety retain sufficient importance to warrant an
examination of their constitutionality.
Constitutionality
The Arkansas and Louisiana school-closing laws were termed "additional
weapons" in the fight to preserve segregation and invalidated as schemes
to circumvent court orders. 48 Most of the laws now on the books, however,
are not so openly related to the avoidance of desegregation and to
that extent are less vulnerable. Nonetheless, insofar as they permit the
State or its instrumentalities to operate public schools in one part of the
State and not in another, they appear to be within the language of the
three-judge court in James v. Almond, 4 * where the court said that such
action was a denial of equal protection not because of its racial implications,
but because it involved discrimination between children, whatever
their race, in different parts of the State. The result should be the
same whether responsibility for school closing is vested in the State or in
local agencies, for as the Supreme Court stated in Cooper v. Aaron: 4B
The situation here is in no different posture because the members
of the school board and the superintendent of schools are local
officials; from the point of view of the I4th amendment, they stand
in this litigation as agents of the State.
The command of the I4th amendment is that "no State . . .
shall deny to any person within its jurisdiction the equal protection
of the laws." . . . Whoever, by virtue of public position under a
State government . . . denies or takes away the equal protection
of the laws, violates the constitutional inhibition; and as he acts in
the name and for the State, and is clothed with the State's power,
his act is that of the State. This must be so, or the constitutional
prohibition has no meaning.
This reasoning indicates that the Constitution does not permit the
operation of some public schools in a State if public schools in other
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