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

The more restrictive standards of southern communities were inapplicable
in Delaware, the court said, because it was further along
"upon the road toward full integration." 117 The court found the statement
of the Chief Justice in the School Segregation Cases that "at stake
is the personal interest of the plaintiffs [Negro schoolchildren] in admission
to public schools as soon as practicable on a nondiscriminatory
basis," 118 particularly pertinent. 119
Closely allied to the question of when the immediate, general admission
of all qualified Negro pupils is appropriate, is the question of the
rights of the particular plaintiffs in an action. Grade-a-year plans beginning
at grade i usually preclude the plaintiffs from ever enjoying
their constitutional rights. Since the plaintiffs must have been eligible
for school when their case was brought, it is hardly likely that they will be
entering first grade when the court-approved plan goes into effect. As
desegregation progresses through the grades year by year, so will they—
thus keeping constantly ahead of it. Most courts have ignored this, but
the Third Circuit in the Delaware case was keenly aware of the plaintiffs'
rights. One of its grounds for reversal was that "the plan as approved
by the court below will completely deprive the infant plaintiffs, and all
those in like position, of any chance whatever of integrated education,
their constitutional right." 12 ° The court cited Lucy v. Adams 121 in
support of the proposition "that individual plaintiffs in a class suit. . .
have a personal right to immediate enforcement of their claims if such
be feasible." 122
It seems clear that under the doctrine of all deliberate speed and
the statement of the Chief Justice quoted above, the rights of the individual
plaintiffs and others may be deferred; but whether they can
be deferred forever by the terms of a court-approved plan will have
to be faced by the courts. The difficulty inherent in a grade-a-year,
12-year plan beginning at grade one would, of course, be obviated by
beginning at grade 12 and working down. But the educational advantages
of starting at grade one are obvious. The gap in scholastic
achievement between the average white student in the white school
and the average Negro student in the Negro school becomes progressively
greater year after year. It is smallest at grade one.
Another solution was inserted into a y-year gradual plan by a Federal
district court in Maryland in Moore v. Board of Education of Harford
County. 123 In that case, after the desegregation of the elementary
schools, the junior and senior high schools were to be desegregated a
grade a year beginning with the seventh grade. All elementary pupils
were given a choice of attending either the school traditionally attended
or the nearest school. Thus, the plan would have precluded all Negro
children in the sixth grade or above at the time, including some of the
plaintiffs, from ever attending a desegregated high school. To prevent
this result, a provision was made for individual application for transfer
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