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

As to administration the questions are: (i) what sort of board action
on pupil assignment constitutes desegregation? (2) can initial assignments
be made on a racial basis? and (3) can assignments be made on
the basis of the prescribed criteria without first classifying schools by the
same criteria?
Board action required.—Court decisions are in conflict as to whether
the mere existence of an assignment law in and of itself constitutes a
desegregation plan for each local school district in the State or whether
it merely provides the legal machinery for one. This question is important
because only a few school boards in 5 of the 11 States having pupil
placement laws have made any pretense of using them.
If a pupil placement law is not deemed a desegregation plan but
merely machinery which may be used to achieve a nondiscriminatory
operation of a school system, some affirmative action by the school board
is needed to put it into effect. In the absence of any action by the board,
a class suit can be brought to force the board to act. 46 If on the other
hand the mere existence of a placement law, without any action to implement
it, constitutes a desegregation plan, those seeking relief from
segregation may be required to exhaust available administrative remedies
individually before bringing suit. The latter requirement is often extremely
onerous.
The courts have taken three positions on this issue. The Fourth
Circuit has viewed the North Carolina pupil assignment and enrollment
act as constituting a desegregation plan; therefore it has dismissed desegregation
suits when plaintiffs' administrative remedies had not been
exhausted. 48
The Fifth Circuit took the opposite view in Gibson v. Board of Public
Instruction of Dade County" holding that the Florida pupil placement
law provides merely the legal machinery for effectuating desegregation.
Therefore, administrative remedies did not have to be exhausted before
suit was brought. In this case, the court said: 48
. . .we cannot agree with the district court that the pupil assignment
law, or even that the pupil assignment law plus the
implementing resolution, in and of themselves, met the requirements
of a plan of desegregation of the schools or constituted a "reasonable
start toward full compliance" with the Supreme Court's May
17,1954, ruling. That law and resolution do no more than furnish
the legal machinery under which compliance may be started and
effectuated. Indeed, there is nothing in either the pupil assignment
law or the implementing resolution clearly inconsistent with
a continuing policy of compulsory racial segregation.
The Eighth Circuit appears to have taken a middle ground. In Dove
v. Parham 49 the district court held that the plaintiffs were not required
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