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

"The burden rests upon the defendants to establish that such
time is necessary in the public interest and is consistent with goodfaith
compliance at the earliest practicable date."
Unless a warning of possible acceleration at a later date is given, however,
community acceptance of a speedup schedule might present the
same problems as a first step.
In three cases—arising in Delaware, Kentucky, and Virginia—a 12-
year period for compliance has been disapproved as not warranted by
the problems of transition, and immediate desegregation has been ordered
in all grades. 128
Other time factors
The Virginia State pupil placement law by requiring individual assignment
of all new pupils, and automatically reassigning old pupils to the
school previously attended, introduces a definite time factor, but one of
less than 12 years. New pupils are defined by the law as those entering
school for the first time (kindergarteners and first-graders), and those
transferring to, and graduating within, the school district. Thus, if the
schools of a particular district are on an 8-4 basis, those who entered
second grade the year the law was put into operation would come up for
individual assignment for the first time upon graduation from eighth
grade. Under a 6-3-3 division of school, the maximum period would
be only 5 years.
The Virginia law, in theory at least, avoids the objectionable practice
of automatically making all initial assignments on a racial basis. The
tune feature of the law has not been tested in court, but it seems to be a
reasonable method of implementing the placement law and of satisfying
the requirements of all deliberate speed, particularly since all pupils automatically
reassigned to the school previously attended have the right at
all times to apply for reassignment.
In some cases, courts have approved gradual implementation plans
without requiring that any time scale be set. This procedure does not
seem to meet the requirement of the second Brown decision, which
required proof of administrative cause for delay. 127 Without such proof
a court has no basis for deciding the question of all deliberate speed, one
of the three interrelated questions that must be decided to determine the
constitutionality of any plan.
In the Charlottesville case, 128 the Fourth Circuit affirmed a denial of
transfer, even though the administration of the previously approved plan
was found clearly discriminatory. The court condoned the board's action
because "they [the members of school board and school superintendent]
intend in good faith to achieve as promptly as possible the desegregation of
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