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

seems to arise. The cost of public transportation may be a deterring
factor in the choice of a school outside of the pupil's residential area, but
no court has said that school authorities are obliged to provide transportation
for out-of-zone pupils. When a school system offers free
transportation, it must do so without regard to race, but race alone
would not appear to entitle one to free transportation. Therefore, although
there has been no legal test of the constitutionality of the
Baltimore free-choice method of desegregation, it appears to be constitutionally
valid.
Several school systems have attempted unsuccessfully to get court
approval of desegregation plans offering a choice between racially segregated
and biracial schools. Such attempts have relied on the proposition
that segregation by choice is constitutionally acceptable. The first
such plan was rejected by a Federal district court in Kelley v. Board of
Education of Nashville, 13 on the ground that a choice between a segregated
and nonsegregated school was merely a preliminary step to the
establishment of schools based on racial distinctions—white as well as
Negro pupils would be barred from some schools on the basis of race
alone. The doctrine of the School Segregation cases, the court held,
applies to individual schools as well as school systems: ". . . discrimination
is clearly not eliminated by maintaining and operating some schools
in the system on a racially segregated basis and others with the discrimination
removed." 18 The plan could not meet the test of constitutionality
because, when fully effective, racial discrimination would still
exist.
Recently two similar plans have been rejected. A Federal district
court in Ross v. Peterson 1 * (the Houston case), rejected the Houston
School Board's "salt and pepper" plan as "a palpable sham and subterfuge
designed only to accomplish further evasion and delay." " This
plan called for the opening to I high school, I junior high school, and
i elementary school (out of a total 173 schools) to voluntary enrollment
by both whites and Negroes. The particular schools to be opened to
biracial enrollment were to be selected by a study of the results of a
referendum on the question of desegregating schools.
In Borders v. Rippy 19 a "salt and pepper" plan, presented by the
Dallas School Board at the urging of the Federal district court, was
approved, but struck down on appeal. 17 Like the Houston plan, it
provided for separating and grouping schools into white, Negro, and
mixed. It also provided for canvassing parents and pupils to ascertain
their preferences. The U.S. Court of Appeals for the Fifth Circuit
observed that the "plan evidences a total misconception of the nature
of the constitutional rights" 18 of the plaintiffs: 19
18
. . . Negro children have no constitutional right to the attendance
of white children with them in the public schools. Their constitu-