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

localities have been abandoned. This question is presently before a
Federal district court in the Prince Edward County case. 48
No court has yet ruled on the constitutionality of complete abandonment
by a State of its public schools. Two States have laws permitting
this; none has actually done so. On the basis of the Arkansas and
Louisiana cases, it is possible that the closing of all the public schools in
a State because of a threat of desegregation would constitute a denial of
equal protection to those individuals willing to attend desegregated
schools. They would be deprived of the opportunity to attend public
schools only because of the fact of desegregation. However, the complete
withdrawal of the State from public education (unrelated to a threat
of desegregation) may well not fall within the scope of the equal-protection
clause. All citizens would then be equally deprived of the advantages
of a public function which the State has not been held to be
bound to perform. The right to equality in public education, under
present court decisions, arises only where the State is in fact providing
some public education.
It may be, however, that public education has become so fundamentally
a function of State and local government that the courts
would hold the elimination of all public education by such a government
to be a denial of due process of law. The Federal district
court in the St. Helena case has posed the question in just these terms,
and has invited the Attorney General of the United States as well as
those of all the individual States to submit briefs on the issue. 47 That
case, however, was not decided on this issue. 47 *
THE GUTTING OFF OF PUBLIC FUNDS
Laws providing that State funds be withheld from schools or school
districts which desegregate are similar to school-closing laws in purpose,
effect, and constitutional import. As early as 1955 both Georgia 48
and South Carolina 49 adopted such laws. (South Carolina also inserted
a provision to that effect in its 1956 and 1960 appropriation laws. 00
The Georgia law was repealed in the spring of <strong>1961</strong>. 61 ) Virginia passed
a statute of this kind in igsG, 52 repealed it 3 years later as a result
of the Perrow <strong>Commission</strong> report. 88 The 1957 Texas statute 84 which
provided for the withdrawal of State funds from any locality desegregating
its schools without approval of the voters was given a very restrictive
interpretation by the State atttorney general, who ruled that
the law did not apply to districts that desegregated under court order. 58
Similarly, in James v. Duckworth, 50 a city ordinance cutting off funds
86