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

may in such a situation find it necessary to make selection between
Negro students, and it will be entitled to do so on proper judgment
as to what will best serve to accomplish its program. . . .
The court's meaning is not entirely clear. It may be that racial considerations
must be excluded from everything except the unexecuted
portion of the plan or full compliance cannot be reached. This would
mean that race is geared to the scope of the step taken. Thus, in the
Dallas case the Fifth Circuit required deletion of the racial transfer
provision that was tied to the desegregation of each successive grade.
The fact that race is the basis of assignment in the grades not yet desegregated
is accepted without question in all plans calling for gradual
implementation.
It was pointed out earlier that the decision in the Dallas case seems
sound because the transfer provision, which the court disapproved, would
have precluded any possibility of full compliance at the end of 12 years.
However, if the plan had called for the elimination of the transfer
provision at the end of 12 years, it might have been sustained as an
interim measure even though it would necessarily extend the transition
period from 12 to 18 or 20 years, depending upon the number of grades
in the elementary school. Only in the second period, after the transfer
provision based on race had been eliminated, could full compliance
be reached. The elimination of the transfer provision would be effective
for ist, yth, and loth (or 8th) grade pupils in the i3th year,
and would gradually encompass all grades as they moved up through
the elementary and secondary schools. At the end of the period, pupils
in all grades would have been assigned by residence only. Thus, the
first 12 years would have been merely preliminary. It is not suggested
that any court would or should approve an 18- or 2O-year plan. The
hypothesis is presented for the purpose of illustrating the significance
of completely eliminating racial factors in the final steps leading toward
full compliance.
37