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

choice is between two schools having a preponderantly, and one having
a slightly less than 15 percent, 49 Negro enrollment. Under this plan
school authorities are relatively immune from charges of segregation by
zoning.
SITE SELECTION
School boards usually are authorized to select sites for new schools.
This, like the power to fix attendance zones, if misused to promote racial
segregation, would seem to constitute State action that is forbidden by
the equal protection clause. Apparently the New Rochelle case (discussed
above with regard to the gerrymander) is the only one in which
a charge of abuse of authority was sustained on this ground.
In Sealy v. Department of Public Instruction of Pennsylvania 80 in
1957 an effort to prove discrimination by site selection failed. The
facts showed that the school district in question was composed of two
noncontiguous areas. The upper section had a Negro public school
population of less than 5 percent, the lower of more than 95 percent.
Even after allowing for the large number of children (particularly
whites living in the upper section) who attended a Catholic parochial
school, there were about 17 percent more public school students living
in the upper, than in the lower section. A new school was to be built
to replace an old one located in the lower section. It was to serve all
children living in the district. The trial court found no evidence that the
school board had been motivated by any racial consideration in its decision
to locate the school in the upper section. Since all junior high
students in the district, both Negro and white, would be free to attend the
new school, no real question of creating a segregated school by site
selection was involved in the case.
In affirming the lower court decision, the United States Court of
Appeals for the Third Circuit said: 81
The location of schools assuredly is one for State school authorities
and local school boards; for State, not national courts, unless there
be a deprivation of rights guaranteed by the i4th amendment.
The plaintiffs have failed to prove their case.
In the Pontiac case, referred to above, discrimination by site selection
was also charged. The facts showed that two sites had been considered.
One was located in a densely populated Negro neighborhood, the other
in a rather remote, but apparently less racially congested area. The
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