This case was originally filed in January of 1963. The plaintiffs, who are Negro children and their parents residing in Tuskegee, Macon County, Alabama, originally sought relief of the defendants the Macon County Board of Education, its individual members, and C. A. Pruitt as Superintendent of Education of Macon County. Jurisdiction was invoked pursuant to 28 U.S.C. § 1343 (3) and 42 U.S.C. § 1983. The suit was brought as a class action under Rule 23(a) (3), Federal Rules of Civil Procedure. The case as originally filed sought to have this Court enjoin the Board of Education of Macon County, Alabama, and the other named defendants from continuing a policy, practice, custom and usage of maintaining and operating a compulsory biracial school system in Macon County, Alabama, and assigning school children, including the plaintiffs, on the basis of their race. In addition and among other things, the plaintiffs ask this Court to make and enter the necessary orders assuring their constitutional right and the constitutional right of other members of their race and class to attend the public schools of Macon County, Alabama, without being discriminated against on account of their race or color. In July, 1963, plaintiffs filed a motion for a preliminary injunction against defendants' operation of a racially discriminatory school system and in the alternative renewed their request to have the defendants submit a desegregation plan. This Court at this stage of the proceeding determined that the public interest in the administration of justice and in preserving law and order and in protecting the authority and integrity of the lawfully constituted courts of the United States made it appropriate and necessary that the United States of America be designated to appear
After hearing the testimony, the District Judge on August 13, 1963, granted the plaintiffs' motion for a preliminary injunction, and in a memorandum opinion filed August 22, 1963,
As stated above, acting pursuant to this Court's order, the defendant Macon County Board of Education assigned 13 Negro pupils to the Tuskegee Public High School. These pupils were assigned in grades eight through twelve and were
Acting upon this direction of Governor Wallace, the State troopers surrounded the Tuskegee High School, and neither the pupils nor teachers were permitted to enter the school. Tuskegee High School remained closed for one week. On September 9, 1963, Governor Wallace issued another Executive Order, which stated, in part:
State troopers continued to surround the school and block the entrance of the Negro pupils. The white students, however, were permitted to enter the school on September 9. Prior to the interference by the Governor of the State of Alabama as related above, approximately 250 white pupils had been preregistered to attend Tuskegee High School commencing September, 1963. After the delay occasioned by the first Executive Order of the Governor and on September 9, only 35 white pupils attended. By September 12 every white pupil had withdrawn from the school. Of the original 250 registered to attend Tuskegee High School, approximately 100 transferred to Shorter High School and 40 to 50 transferred to Macon County High School in Notasulga. Both Shorter and Notasulga high schools are a part of the Macon County school system. The remainder of the students went to a "private" institution that has been set up in Tuskegee and named Macon Academy; this school has been limited to white pupils. Governor Wallace announced publicly that the State Legislature had provided for grants-in-aid to private schools and assured the organizers of the Macon Academy that the Macon County Board of Education would cooperate in making grants-in-aid available through the use of its statutory authority to provide such aid to students in lieu of operating a particular public school. On September 17, 1963, the State Board of Education passed a resolution directing "that the Macon County Board of Education comply with the State law with reference
In January, 1964, the Alabama State Board of Education passed the following resolution:
On the same date, this resolution was wired by the State Superintendent of Education to the Macon County Superintendent of Education. In the same session, the State Board directed the Governor to take whatever steps were necessary to execute its directive to close the Tuskegee Public High School above grade seven. In compliance with the directive of the State Board, the County Board of Education closed the Tuskegee High School effective February 3, 1964, and directed that all students then attending Tuskegee High School (12 Negro and no white students) be transferred to other schools in the "Tuskegee area." The County Board of Education further directed that the teachers of the Tuskegee High School be assigned to such other schools in the county as might be designated. The effect of the State Board's resolution facilitated the transportation of white children to the "all white" Shorter and Notasulga schools and by limiting the Negro pupils to "other schools in the Tuskegee area," required them to return to the "all Negro" Tuskegee Institute High School in Tuskegee, Alabama. When on February 3, 1964, the Negro pupils were barred from the Tuskegee High School, this Court upon proper motion, issued a temporary restraining order, the effect of which did not require the reopening of the Tuskegee High School for the 12 Negro pupils, but ordered these Negro pupils admitted to Shorter and Notasulga on the same basis as the white pupils who were transferred from the Tuskegee High School when the Negro pupils first attended in September, 1963.
In February, 1964, the State Board of Education adopted other resolutions directing the Macon County Board to provide
Acting pursuant to the District Court's order of February 3, 1964, the 12 Negro pupils attempted to enroll at Shorter and Notasulga High Schools on February 5. However, the Mayor of Notasulga, James Rea, prevented the entrance of 6 Negro pupils to the Notasulga school, claiming that their attendance would create a fire hazard.
In February, 1964, and shortly prior to the hearing in this case, employees of the Alabama State Department of Education were dispatched to the Macon Academy to discuss accreditation of the school. Forms of accreditation were left at the academy and a cursory inspection of the premises was conducted. Though, admittedly, the school did not conform to accreditation standards in several respects, a letter was sent on February 12, 1964, by the State Superintendent of Education to the Headmaster of Macon Academy stating that accreditation had been granted "effective this date * * * for the 1963-64 school session."
The Governor on February 10, 1964, requested the Justices of the Alabama Supreme Court to render an advisory opinion concerning whether the Alabama law authorized the action taken by the State Board of Education as related above. On February 18, 1964, the Justices replied that no law in Alabama authorized the State Board to do any of the above acts and that such power was vested solely in local boards.
All these issues were heard by this Court on February 21-22, 1964.
Subsequent to the hearing and on February 29, 1964, the Macon County Board of Education submitted a desegregation plan pursuant to an earlier order of this Court, the plan providing for the desegregation of the twelfth grade commencing September, 1964. The plan further provides that applications for transfer
Under the evidence in this case, there is no question that the State of Alabama has an official policy favoring racial segregation in public education. In his Executive Orders of September 2 and 9, 1963, directed to the Macon County Board of Education, Governor Wallace referred to the "unwarranted integration" being forced by the Federal court. In his Executive Order of September 9, the Governor further said that the threat of integration "is detrimental to the public interest" and that the "integration of the public schools will totally disrupt and effectively destroy the educational process." This is particularly significant in this case in that Governor Wallace is, as stated above, the ex officio President of the State Board of Education. Alabama Code, Title 52, Section 7. Further evidence clearly reflecting this official policy is found in one of the State Board of Education's resolutions of February 4, 1964, wherein it was unanimously declared that the State Board would "defend the people of our State against every order of the Federal courts in attempting to integrate the public schools of this State and will use every legal means at our command to defeat said integration orders and pledges our full support to the local boards of education in supporting the public school systems as now constituted * * *."
Strictly in accord with this official policy, the State of Alabama has operated and presently operates a dual school system based upn race. The annual report of the State Department of Education setting forth statistical and financial data for the 1961-62 school year clearly shows this maintenance of a dual school system based upon race. There are different allocations of expenditures between "white" and "Negro" schools; separate statistics by race are kept for school enrollment; transportational facilities are separate; there are different types of schools; financial payments are kept separate, and school expenditures are completely separated. School census figures by county and city are also tabulated separately for "white" and "Negro." The same is true for professional personnel of the local school systems. The annual report repeatedly refers to "Negro schools" and "white schools." The various forms prepared and distributed by the State Department of Education for use by the city and county school boards throughout the State of Alabama similarly provide for the racial designation of schools, students, teachers and equipment. The annual reports that are submitted by the various local boards to the State Board of Education require separate statistical data for "white" and "Negro" schools.
The evidence in this case is clear that over the years the State Board of Education and the State Superintendent of Education have established and enforced
As related above, the temporary restraining order issued by this Court on February 3, 1964, and extended by the full Court of three judges on February 7, 1964, required the Macon County Board of Education to transfer six of the Negro students to Macon County High School at Notasulga and the other six Negro students to Shorter High School. The order further restrained the Alabama State Board of Education from interfering with or obstructing the Macon County Board of Education in carrying out the orders of the District Court. However, since only the 12 Negro children are presently attending the Shorter and Notasulga High Schools,
This Court will not sanction the conditions that have been created in this case, particularly by the Governor, the State Superintendent of Education and the members of the State Board of Education, to be used as an excuse for returning the Negro plaintiffs to the school which the defendant county officials have heretofore operated and are now operating as a racially segregated school for children of the Negro race. It may, however, be appropriate for the Macon County Board of Education to reopen the Tuskegee High School (and this Court would not forbid such reopening) commencing at the beginning of the 1964-65 school year — provided the operation of that high school is in strict accordance with the orders of this Court heretofore entered and as those orders may be modified and amended by this Court.
The plan filed wlith this Court on February 28, 1964, by the Macon County Board of Education, wherein it is proposed to process transfer applications for the 1964-65 school year only with respect to students in the twelfth grade, is completely unacceptable. This proposal is not a step forward; it is a step backward. This Court has already approved the transfer of Negro students to the ninth, tenth, eleventh and twelfth grades in that school. At the present time it is recognized that there are no white children who attend those high school grades. The reopening and operation of the Tuskegee High School or the continued operation of the Notasulga and Shorter High Schools for the 1964-65 school year and any subsequent years must be in a manner designed to eliminate further racial discrimination in the Macon County school system. Specifically, if considered advisable by the Macon County Board of Education, the reopening of the Tuskegee High School will necessitate the transfer of the white students that was approved by the Board of Education to the Notasulga and Shorter schools, back to the Tuskegee High
In this connection, see the Fifth Circuit Court of Appeals' opinion in Armstrong, etc., et al. v. The Board of Education of the City of Birmingham, Jefferson County, Alabama, 333 F.2d 47, wherein the Court stated:
See also the Court's opinion in Stell, et al. v. Savannah-Chatham County Board of Education, et al., etc., 5 Cir., 333 F.2d 55.
Inasmuch as no hearing has yet been held upon the proposed plan filed by the Macon County Board and the objections thereto, it is premature for this Court to direct what specific steps should be taken commencing with the 1964-65 school year to implement further the desegregation of the Macon County schools. However, the Macon County School Board is directed, and will be formally ordered in the decree of this Court, to present to this Court on or before August 3, 1964, a more complete and realistic plan that will conform to what this Court has stated in this opinion. Furthermore, since the evidence as herein related clearly establishes a persistent course of action by the defendant State officials to interfere with and prevent the carrying out of this Court's order respecting the desegregation of the Macon County public schools, and since these State officials have in this interference acted wilfully, the plaintiffs in this case
Since the evidence in this case is clear that Governor Wallace has acted in this unlawful interference both in his capacity as Governor and as ex officio President of the State Board of Education, the plaintiffs may, upon proper motion, be entitled to have injunctive relief run to both capacities. For the time being, however, the order as to Governor Wallace will run only as to his capacity as ex officio President of the Alabama State Board of Education, since he has been sued only in that capacity. The announced decision by the defendants Governor Wallace as ex officio President of the State Board of Education and the other members of the State Board of Education that they will cease their interfering action in the operation of the school system in Macon County and in other counties and cities throughout the State of Alabama, does not deprive these plaintiffs of their right to injunctive relief inasmuch as the defendants could return to their ways of illegal interference if such relief were not granted. United States v. W. T. Grant Co., 345 U.S. 629, 73 S.Ct. 894, 97 L.Ed. 1303, and Gray v. Sanders, 372 U.S. 368, 83 S.Ct. 801, 9 L.Ed.2d 821.
As to that aspect of this case relating to grant-in-aid payments by the State of Alabama for the education of students in racially segregated schools, this Court is of the firm conclusion that such payments would be unconstitutional where they are designed to further or have the effect of furthering said segregation in the public schools. The grants are to be made under the law of Alabama only when public education is "unavailable." It is now clearly settled that once the State undertakes the function of providing public education to its citizens it cannot arbitrarily deny such education to citizens in one area of the State while continuing to make public education available to citizens in the other areas. The most recent pronouncement of this proposition was on May 25, 1964, by the Supreme Court in Griffin, etc., et al. v. County School Board of Prince Edward County, et al., supra. Therefore, as long as the State of Alabama maintains a public school system it cannot make public education "unavailable" for a class of citizens as was here attempted by the defendant State Board of Education and Governor, while making public education available to a different class of citizens in other areas of the county and State. However, this Court is not at this time willing to declare that the grant-in-aid statutes of Alabama are unconstitutional on their face. This is true for the reason that it is conceivable that the State of Alabama may choose to employ "private" schools as its instrument of discharging its obligation to provide education in lieu of its public school system. Needless to say, if that occurs the "private" schools that are made available must be available to the citizens of the State of Alabama without discrimination on account of their race or color. Terry v. Adams, 345 U.S. 461, 73 S.Ct. 809, 97 L.Ed. 1152; Marsh v. State of Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265; Simkins v. Moses H. Cone Memorial Hospital, 4 Cir., 323 F.2d 959, and the recently decided case of Griffin v. County School Board of Prince Edward County, supra. For these reasons this Court concludes that the use of the grant-in-aid statutes by the State of Alabama, through the payment of tuition grants for students enrolled in schools that discriminate upon the basis of race or color is unconstitutional. The use of such statutes for this purpose in Macon County and anywhere else in the State of Alabama will be enjoined by this Court.
Proceeding now to the question concerning whether the State Superintendent of Education and the State
The question of whether, under the evidence in this case, this Court should order desegregation in all the public schools of the State of Alabama at the elementary and secondary level based upon the assumption or usurpation of authority by the Governor, the State Superintendent of Education and the State Board of Education and its members has given this Court considerable concern. There is no question that in the attempt by the Macon County Board of Education to comply with the orders of this Court, the Governor, the State Board and the State Superintendent of Education and the individual members thereof, have demonstrated that they have considerable authority and power over the actual operation of the local school systems. This is true irrespective of any supposed limitations on that power as set out in the Alabama law. The Governor and the State Board directed that the Tuskegee High School be closed; they directed that white students who had formerly attended the Tuskegee High School be transported from Tuskegee to Shorter and Notasulga; and they directed that teachers be transferred to accommodate the transferring students. In each instance the local board in Macon County was forced to comply with the directives of the Governor, the State Board of Education, and the State Superintendent of Education. Thus, these defendants have, through such actions, actively participated in the perpetuation of a segregated school system in Macon County, Alabama. The admission on the part of these defendants that their action was an abuse of their authority and their present reliance on the advisory opinions of the Alabama Supreme Court of February 18, 1964, to the effect that they had no such authority to close the schools and will not "do it again," places them in an extremely weak position. This Court recognizes the authority of the Supreme Court of Alabama when it interprets the Alabama law, as it informally did in these advisory opinions. This Court trusts that the Governor, the State Superintendent of Education and the other members of the State Board of Education will in their future conduct recognize that by their interference with the Macon County school board they have violated not only the Federal law, but the laws of the State of Alabama as well. However, a present recognition of their past illegal activity will not — in this case — justify this Court's failure to take appropriate action now. The Supreme Court of the United States has long since held that a state officer who has abused his authority by denying due process or equal
In this connection, there must be a recognition on the part of these State officials that in the exercise of their general control and supervision over all the public schools in the State of Alabama and particularly in the allocation and distribution of State funds for school operations, they have an affirmative duty to proceed with "deliberate speed" in bringing about the elimination of racial discrimination in the public schools of this State. The Supreme Court of the United States in Cooper v. Aaron, supra, made this clear when it stated:
See also Brown v. Board of Education, supra. This Court, under the evidence in this case, could and possibly should now order the State of Alabama Board of Education to cease the illegal and unconstitutional practice of distributing public funds for the purpose of operating segregated schools. As to this point, the Supreme Court said in Cooper v. Aaron, supra:
See also Board of Public Instruction of Duval County, Fla. v. Braxton, 326 F.2d 616 (5th Cir.), cert. denied (May 1964), 84 S.Ct. 1223. However, this Court will not at the present time enjoin the State Superintendent of Education and the State Board of Education from such allocation and distribution of funds. Needless to say, it is only a question of time until such illegal and unconstitutional support of segregated school systems must cease. These State officials and the local school officials are now put on notice that within a reasonable time this Court will expect and require such support to cease. These school officials should now proceed to formulate and place into effect plans designed to make the distribution of
As to the Macon Academy, the evidence in this case strongly indicates that there has been on the part of the Governor, the State Superintendent of Education, and other State officials, public interference and public support and services to such an extent that that institution should be made a party and given an opportunity to be heard on the question of whether it has become a public institution and therefore a part of the Alabama public school system. If that is the case, then for the reasons already stated, there should be no question that the Macon Academy in Tuskegee, Alabama, is prohibited by the terms of the Fourteenth Amendment from discriminating in its admissions policy and should be enjoined against such action. Since the Macon Academy was not brought in as a proper party in this action when the evidence was taken upon this present submission, this Court will not at this time presume to express any view on the question of whether that institution has become a part of the public school system. It is clear, however, that that organization should be added as a defendant in order that it may be heard upon this issue.
We proceed now to the final question upon this submission: whether or not under the evidence in this case this Court should declare the Alabama School Placement Law unconstitutional in its application. This Court's order of August 22, 1963, directed that the Macon County Board of Education and the Macon County Superintendent of Education start desegregation of the county's public schools in September, 1963, "through the use of the Alabama School Placement Law, without discrimination on the basis of race or color." After this order, approximately 50 Negro pupils between grades eight and twelve applied to be transferred to the Tuskegee High School, formerly an "all white" school. As part of this transfer procedure under the Placement Law, these pupils were given several tests, including the California Standard Test and the Otis Quick Scoring Test. After these and other examinations, 13 of the applicants were granted transfers by the Macon County School Board and thereafter enrolled in Tuskegee High School. As stated above in this opinion, when these Negro pupils enrolled at Tuskegee High School in September, 1963, the white students at that school withdrew; approximately 100 of these white students were by authority of the county board transferred to the high schools at Notasulga and Shorter. These white students were not required to submit to examinations or tests in order to transfer. It is clear, therefore, that the Macon County School Board has used the Alabama School Placement Law only with respect to the applications of Negro students seeking to enter "white" schools. Such a use of the Placement Law is clearly illegal. Mannings v. Board of Public Instruction, 5 Cir., 277 F.2d 370; Jones v. School Board of the City of Alexandria, Virginia, 4 Cir., 278 F.2d 72. Furthermore, the record in this case indicates that the State Board of Education regards the Alabama School Placement Law as a law to be used merely when a school board is faced with demands for desegregation. Such a use of the Alabama Placement Law, since such is clearly unconstitutional, will be enjoined by this Court. It is here noted that the question presented by this record with reference to the Alabama School Placement Law is exactly the same question which was reserved in Shuttlesworth v. Birmingham Board of Education, 162 F.Supp. 372 (N.D.Ala.1958), aff'd 358 U.S. 101, 79 S.Ct. 221, 3 L.Ed.2d 145. The District Court in the Shuttlesworth case said:
The United States Supreme Court affirmed the Shuttlesworth decision on the same "limited ground on which the District Court rested its decision." This Court is not willing at this time, however, to declare the Alabama Placement Law unconstitutional. Future use of this law by the school authorities in the State of Alabama may, if it is applied in a constitutional manner, serve a good purpose, not only for the Alabama public school system but for Alabama citizens of both races. It should not now be stricken down because of its application in Macon County, Alabama, by the Macon County school authorities since its illegal use by that body was brought about through the intense pressure of the Governor of the State of Alabama, the State Superintendent of Education, and the State Board of Education. Such future interference and pressures will not be sanctioned. Future use of the Placement Law in somewhat more normal circumstances should be awaited before finally determining the constitutionality of its use. This Court will also retain jurisdiction as to this aspect of the case.
The temporary restraining order of February 3, 1964, modified as herein indicated, will be enlarged to a preliminary injunction against all the defendants, including the Governor of the State of Alabama as ex officio President of the State Board of Education, the State Superintendent of Education, and the State Board of Education and the individual members thereof. The Macon County Board of Education will be required to extend its proposal for the desegregation of the Macon County school system for the school year commencing September, 1964. The Governor of the State of Alabama as ex officio President of the State Board of Education, the Superintendent of Education for the State of Alabama, and the Alabama State Board of Education and the individual members thereof will be enjoined from preventing or attempting to prevent, or obstructing or interfering in any way with the Macon County Board of Education or any of the city or county boards of education throughout the State of Alabama in their compliance with the orders of the Federal courts requiring the elimination of racial discrimination in the Alabama public school system. The use of the Alabama grant-in-aid laws by the paying or the authorizing or the approving for payment of any tuition under the provisions of the Alabama Code to any child, parent, or guardian in connection with the attendance of a child or children in the schools of Macon County or any other school throughout the State of Alabama where the attendance in the school to be attended by such child is limited or restricted upon the basis of race or color will not be sanctioned. The Macon Academy of Tuskegee, Alabama, will be made a party defendant in this action pursuant to Rule 21 of the Federal Rules of Civil Procedure and will be afforded an opportunity to be heard upon the question of whether that institution is part of the public school system of the State of Alabama. No order will be entered at this time desegregating all the public schools of the State at either the elementary and secondary level, and no order will be entered at this time declaring the Alabama School Placement Law unconstitutional in its application.
This Court specifically retains jurisdiction of this cause.