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

The Fifth Circuit appears to be on firm constitutional ground. In
addition to the dubious constitutionality of considering race, the restricted
transfer provision seems to lead to compulsory segregation and, the plan
therefore does not move toward and can never reach full compliance.
Pupil assignment
All of the former Confederate States have adopted laws since May 1954
empowering and directing a State or local board to enroll and assign
pupils individually to its various schools. 89 Essentially, there are two
types of placement plans: the North Carolina plan 40 and the Alabama
plan. 41
The former, which is followed with procedural variations by Virginia
(South Carolina has a similar law, not yet applied), directs that the
assignment of pupils to particular schools shall be guided by the f ollowing
considerations: orderly and efficient administration of the school; effective
instruction; and the health, safety, and general welfare of the pupils.
The North Carolina law vests complete and final enrollment authority
in the local board. In Virginia * 3 this power is in the State pupil placement
board unless a local board has exercised its option to assume this
function—(four local systems have recently done so). 48
Under the Alabama plan, in effect in eight States, local school boards
are directed to assign pupils in accordance with many detailed criteria
which do not include race. These criteria fall generally into the following
classifications: (i) available school plants, staff, and transportation;
(2) school curriculums in relation to each pupil's academic preparation
and scholastic abilities; (3) the pupil's morals, conduct, health, personal
standards, home environment; and (4) effect of admission of the pupil
on other pupils and the community.
Under both plans, after the appropriate board has made an original
assignment, the parent or guardian of any child may request his transfer
to another school. If transfer is denied, provision is made for protest
and hearing and, in some cases, appeal to a higher board or court. Some
States make no administrative provision for the protest of the initial
assignment, which may be of significance in determining when a pupil
may resort to the courts for relief from allegedly unconstitutional administrative
action.
If the criteria used are not arbitrary or unreasonable and do not relate
to race, it seems clear that an impartial assignment of each pupil to the
appropriate school is permissible. However, constitutional questions
may arise both as to the criteria and their administration. It must be
remembered that the Shuttlesworth case ** did not uphold the constitutionality
of each criterion for pupil assignment in the Alabama law.
That decision merely held in effect that there was at least one valid
criterion included therein.
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