September 4, 1958

I M a y I?, 1954: We conclude that in the field of public education the, doctrine, of “separate but equal’’ has I

no place: Separate educational f a d - ities are inherently unequal.

May 31, ‘1955: Full implementation of these constitutional principles may require solution of varied local school problems. Social authorities have the primary responsibility for elucidat- ing, assessing, and solving these prob- lems. . . . Because of their proximity t o local conditions and the possible need for further heanngs, the courts (should) enter such orders and de- crees consistent with this opinion as are necessary and proper to admit to public schools on a racialIy nondis- criminatory basis with all deliberate speed the parties to these cases.

Thus, with dignity and quiet elo- quence the Supreme Court aban- doned the outworn doctrine of “sep- arate but equal” and decreed that the change-over should be made “with all deliberate speed.’’

September, 1957, marks the begin- ning of the fourth school year since the original decision of the United States Supreme Court in the Schodl Segregation Carer. Each September has seen additional thousands of Negro children actually in attlendance at formerly all-white public schools or in so-called “integrated situa- tions.” There are now about two mil- lion whites’ and 350,000 Negroes who have to date been directly affected by the. principle of equality without discrimination. The District of Co- lumbia schools are fully integrated; four formerly completely segregated states have now desegrqgated more than half of their school districts (Kentucky, Maryland, Missouri and Oklahoma); and five states have partially desegregated (Arkansas, Delaware, North Carolina, Tennes- see and Texas). Thus only seven states have not yet begun ‘desegrega- tion ’ (Aiabama, Florida, Georgia, Louisiana, Mississippi, Sourh Carol- ina and Virginia). But even here the breach has commenced: In Louisiana

RBBBPIT McKA’Y i5 professor of law, New York Univer~i ty Law

. S c h o l . 988

and Virginia Negroes are- admitted to state schools at the universiry level.

As the area of uncompromising re- sistance inescapably narrows, new measures of recalcitrance are some- times demonstrated. In this situation lie the seeds of a cdsis in constitu- tional power, germinated in Lirtle Rock, but sign~ficant far beyond tha t epiiode and that community. For the first time slnce the School Segre- gation Ca-res were decided in 1954, a state governor ordered out ‘Local units of the National Guard to pre- vent enfQrcement of a federal court desegregation order.

IT was surprising, indeed, that this form of drastic actian should first oc- cur in Arkansas, where i t seemed out of keeping with the state’$ moderare tradition and with previous indica- tions of the sentiments of the state’s chief executive, Governor Orval E. Faubus, who had opposed and de- feated the violently segregationist elements of the state only the year before. To be sure, one might have expected the Governor and the state alike to be moderately opposed t o enforced integration; but resistance to the Little Rock school board’s own plan, as supported by a federal court order, was quite a ‘different thing. After all, the University of Arkansas and other state-supported schools had already been integrated, beginning as long ago as 1948 when the state law school a t Fayetreville was opened to Negroes without any threat of litiga- tion. Moreover, several public-school systems had been successfully inte- grated in Arkansas prior to 19i7, while others-Fort Smith, Ozark and Van Buren-commenced integration without incident at the same. time that the Little ,Rock episode was building up. 8

The facts of that controversy are simpIe. For more than two years the Little Rock School Board has been worki,ng on a plan of gradual desegre-: gation, The board plan, while COR- cededly devised in good faith, a t first brought more satisfacrion to segrega- tionists than to the Negro parents in

the city. It called for an eminently gradual program, beginnihg with a change-overinthehigh schoolin 1957, then working gradually through the other grades over a six-year period. The sufficiency of the plan in light of the School Segregation Cares was challenged by Negro parents, but up- held in the federal distIict‘courts in 1956 and on .appeal in April, 1957. In late August, 1957, a suit was brought in state court by a white parent seeking a stay of the high school desegregation. Although not a party in tha t proceeding,. Governor Faubus testified as to the likelihood of bloodshed and mob violence, and the state court judge ordered dis- continuance of the integration plans. This was immediately upset by Fed- eral District Court Judge Ronald N. Davies ’who, in effect, enjoined th‘e state court from enterraining such actions; but of course it had no di- rectly coercive, effect upon the Gov- ernor as a basis for contempt cita- tion for his subsequent action.

THE DAY before classes were to be- gin the Governor made’ explicit Fis fears of violence-he spoke of “cara- vans” of segregationists converging on Little Rock and of Negro pur- chases of knives and called out the National Guard to “maintain order.” If any uncertainty remained as TO the troops’ missioh-preventing Ne- gro enrollment-that doubt was dis- pelled when he said: “The inevitable conclusion is that the schools must be operated as they have in the past.”

Thus the desegregation controversy entered a new phase. For the first time troops were called out ostensibly to prevent violence which had not yet occurred, ,and the threat of which was denled by the very people most likely t o know-the mayor of the affected community and th& school board. The troops did what was ex- pected ’ of them: The 270 National Guardsmen on duty the fiiit day of school, and smaller numbers there- after, permitted the white children to enter the high school and pre- vented the admission of nine Negro

The NATION -

students who sought to enter. Sim- ilarly, the federal court dld what might be expected of the local repre- sentative of the ‘supreme judicial au- thority: Judge Davm ordered school officials to disregard the troops and permit Negroes to attend. Indeed, lrater when the school board itself be- gan to waver and sought a temporary stay of the order, Judge Davies called thelr petition “anemic” and reassert- ed his order €or Immediate admission of the students.

It I S hardly surprising that a few days1 after Governor Faubus’ pre- diction of “violence, bloodshed and mob riots,)1 a’ disorderly crowd as- sembled at Little Rock’s Central High School. Such a prpphecy,’ of course, tends to become self-fulfill- ing. The Governor’s prediction had the effect of a call t o vlolence. How- ever, the mildness of the local temper on the issue was demonstrated by the fact that the Governor’s action summoned no more response than a small crowd of townspeople more glven to noisy curiosity than to riot. Undoubtedly, if the Governor had remained silent, the prediction of Little Rock Mayor Woodrow Wilson Mann would have been fulfilled and the integratlon would haSe proceed- ed, without event. As the Mayor‘put it, the Governor called. out the Na- tional Guard t o “put down trouble where none existed." And he added, “If any racial trouble does develop the blame rests squarely on the door- step of the governor’s mansion ’:- .

In examining the course 01 ac- tion pursued by Govern’or tFaubus, .the legal problems are not difficult. A governor is no less subject to the law of the land than a n y other per- son; for any violation of those prin- ciples tvhich he is sworn tq uphbld, he is subject t o the same restraints and, penalties as other individuals. In short, to the extent that he acts in, excess of his constitutional au- thority, he is not protdcted by sover- eign immpLty. The central issue is one of .:determining Governor Fau- bus’ authority, whether he acted in excess Thereof, and, if so, what sanc- tions ma,jl: be imposed.

It is, of course, axiomatic ,,that mat- ters of local order are within the police-power jurisdiction ‘of the state. Wlrhin the state, it is normal for

SL pr~n1LJc1 23, I?S?

matters relating to’ a particular com- munity to be handled by the local authoritles of that communrty, in- cluding the police. State assistance is1 vrdrnardy given only as needed and requested by the local authorities. This, for example, is the way the Clmton’ disturbances in 1956 were handled. When the local officials of that small community found t h a t they were unable to cope with the dlso’rder, they called on the state for assistance, which was promptly sup- plied by Governor Clement ii1 the form of National Guard troops. There, however, the troops were used to en- sure compliance with the desegraga- tion order; the troops themselves b e came ins trumentallties in the enfqrce- ment of the rule of law. How differ- ently the somewhat parallel situation .inLittleRock was handled. Where the local authorities, after careful prepa- ration over a two-year period, found no evidence of disorder beyond their capacity ’ to handle, the Governor, over local protest, ordered ‘the Na- tional Guard into action. Even more objectionable is the fact that the troops were not employed t o imple- ment the valid court order, but to prevent compliance with its terms.

An instructive parallel is found in the only instance in which the SU- preme Coui-t has, decided the merits of a controversy involving the use of the National Guard to prevent en- forcement of a federal court decree. As Chi’ef Justice Hughes put it em; phatically in that case, SterEiNg ‘o. ConstagLtir, 287 U.S. 378, 404 ( 1932) :

, ”

I

If it be assumed that ‘the Governor was entitled to declaTe a state of in- surrection and t o bring military force to the aid of 6vil authority, the 5

proper use of that power in this in- stance was to maintain che federal court in the exercise of its jurisdic- ’

tion and not to attempt to override it; to aid in making its ‘process ef- fective and not to nullify it; to re- move, and not to create, obstructions ’ to the exercise by the complainants of their rights as judicially declared.

LANGU-4GE more directly relevant to the action of Governor Faubus can scarcely be imagined. His use of troops to prevent enforcement of the court order thus makes irrelevant any discussion of $he, Governor’s ‘‘good faith” fear of disorder.&e used the troops for what was neceg- sarlly an unlawful purpose-defeat- ing the federal court order. To say the least, studied disregard ,of law is scarcely good-faith action in support of law. It seems clear then that the keepn?g of troops at any schobl, Little Rock or elsewhere, to prevent the enforcement of a federal court desegregation order is an interference wrth federal supremacy. Accordingly, a show cause order in such ,circum- stances could be decided in only one way, for there is no legal justifica- tion for, such a course of action. FoI- lowing the issuance of such an order, any failure t o comply with the in- junctive requirements would, of course, subject any violato;, gov- ernor, troop commander, or other ,

person made subject to the order, to the possibility of a contempt cita-

‘tion. And in the ‘circumstances pos- tulated there appears to be n o doubt tha t , a contempt order would be sustainedsby the Supreme Court . The result could scarcely be otherwise un- der a federal system in’ whrch the na - tional authority IS, as it necessarily m u s t be, supreme.

Even though the ult imate rights are clear in this t y p e of situatlon, a central problem.of some delicacy is involved in the proper selection and timing of the control devices by which the proper end result can be assured with a mmimum of disloca- t ion along the way. The ult lmate source of executlve authority rests upon thc President, and the respon-

. sibility for decision must necessarily “ P h1a Fortunatelv or not, solution

IT these matters can be sought in several different directions, both along avenues of strict legal au- thority and by way of persuasion and prestige. Each choice deserves dis- cussion. ,

THOSE, WWb are committed t o t h e prolonging of school segregation have repeatedly demonstrated strong imi-

, tatwe ability. Whatever device, strat- amem or law proves useful as a tech- nrque of delay in one si tuation may I

be expected to be duplicated in other L places. Thus, to the extent that ob-

servers might believe Governor Fau- bus has developed a “gimmick” t h a t will make integration come harder, variants on that scheme may be an- ticipated. This, then, is the aspect‘of Litt le Rock , that carries the greatest long-range significance. Somehow it must be made very clear to would- be imi ta tors tha t this is n o t a scheme likely to succeed. T h e school board, the Mayor , and t h e local federal court has each performed adequate- ly and in the best traditon. But they need the support that can come per- haps only, and certainly best, from a popular natlonal f~gure such as Pres- ident Eisenhower. Perhaps, as many urge, he should have taken a much more vigorous stand in favor of early desegregation than he did. Perhaps he went along too I-caddy with a CC gradualism” that has often meant no‘rnovement at all. But surely now that he has seen “deliberate speed” distorted into “deliberate evasion” in all too many instances, the time

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I 190

Col~mbia, S.C., Sept. 16 ANDRE TOTH is a twenty-three- year-old, lantern-jawed Hungarian refugee whose averslon to rain is ‘ex- ceeded only by his love of freedom.

It was raining that night early in 1956 when Communist police im- prisoned him for his role in the Budapest rebellion. There was a slight drizzle the day, las t October, Toth walked out of prison and fled his homeland. It rained in Paris the night Toth and his mother s a d good- bye near the Eiffel Tower as he pre- pared to sail for the refugee camp a t Camp Kilmer, New Jersey.

It is raining here and now-Mon- dlv. Se-rt-mber 16. 1957-as Andrk Toth and I walked across the campus of Allen University, where he has in- curred the wrath of segregationalists as the first white student to enrol1 at this eighty-seven-year-old institu- tion of the African Methodist Epis- copal Church. .

The controversy began here last month when Dean Arthur D. Green announced that five scholarships had been allotted to Hungarian refugee students upon the request of the United States Department of Health, Education and Public Welfare, act- ing in concert with the Institute of International Education and the World University Service. The re- quest had the blessings of the State Department.

Aslrea about the admission of the white students to the hitherto all- Negro campus, South Carolina State Attorney General T. C. Calllson said: “The state cannot prohibit the ad- mission of whixe students a t Allen University as it is a private school. However, such admissions will be deemed against public policy.”

Because of ,the controversy, there was doubt that the Hungarians would accept the scholarships, but on Satur- day, September 14, Toth reglstered in the College of Fine Arts. And this morning-as the United Nations As- sembly headed for a showdown over fixing blame for the Hungarian up- rising and its consequences-the five- member South Carolina State Board of Education voted unanimously “in the public interest, to withhold

LOUIS E . LOMAX is a vete.ran aews-papeq correrpondsnt m d a \ fwe- lance writer.

i

the certification of Allen University graduates.”

“I am still a visitor in America,” Toth tells me as we stroll along, “and I have no right to comment on your internal affalrs. But,” he 1 contlnhes in halting English, “you can say 1 believe in freedom; that all people are the same; that injustice is not confmed to my one country. I am happy here and Intend to remain.”

The home of university president Dr. Frank Veal is quiet. He has had hls last say on the matter: “State of- flclals, as you know, withdrew our certification. This means our grad- uates w~ll no t be able to get teach- Ing certlflcates in thls state Our only comment IS that Mr. Toth will remain with us.”

A small crowd of white gawkers has gathered peacefully near the campus, but Toth is unruffled. “The world University Student Service gave me my scholarship and I had a complete briefing on the racial situation. I was afraid that some students would be-upset because of the uproar, but they’ve been very nlce.”

By noon today i t was clear that the segregationists’ threat had faiIed.

“Our students have nor: been frightened,” registrar William Per- guese said, “registration is normal, if not , above. We had approximately 900 students last year and I expect t o match that this year,”

As we continue across the campus, Apdrk shrugs off mist questions con- cerning race and integration.

“I want to get on with learning,” he comments, “I have always want- ed to paint and study the history of art. That is what I am here for. I might try out for one of the athletic teams. I don’t know yet.”

“I hope you don’t mind making this interview short,” he adds pleasantly, “my room mate arrived late last night. I was asleep and didn’t get, a chance to know him well. I’m anxious to get back t o my room and see what kind of fellow I’ll have to put up wlth for the year.”

In the center of down town Colum- bia is he state Capitol bulldmg and South CarSiLL7- double motlo is etched in the cornerstone: ‘~!l&zm opzbusq~te parati. ~ ‘ I L Y ~ spiro spero.” That is to say, “Prepared in mmds and resources. While I breathe I hope.”

T h e NATION

has come when he must take a more - forthright stand. An appropriate step in this direction was the Presi- dent’s telegram to Governor Faubus, informing the Governor that the President intended t o uphold the Constitution “by every legal means q t my command.” Regrettably, how-

I ’ever, the impact of this statement 1 was diluted by the conference be-

tween the Presldent and the Gov- ~ ernor at Newport, Rhode Island. The

statements Issued by the parties ‘fol- lowing that conference gave the un- fortunate impression that the Gov-

I, ernbr’s use of troops ,was a matter I_ ” . for negotiation and bargaining be-

tween the President, sworn to up- hold the Constitution, and the Gov- ernor whose actions had amounted to

c If repetition of the Little Rock situa- ’ tion is to be effectively discouraged, the President must make clear his determlnatlon to act promptly in the futule to prevent interruption

, of orderly desegregation undertaken 1 , in pu’rsuance ‘of judicial determina-

, , a flouting ‘of the ‘same Instrument.

C ’

tion,

THE’ President’s once-expressed in- tention to use “every legal means” a t his command, recalls that there IS an adequate arsenal of Presiden-

’ ’ tial authority. In the unlikely event , that i n seme future situation a state

official should refuse to withdraw r National Guard troops even after a

s I f I

contempt citation, the court itseIf would have but one additional en- forcement device, and that one of ‘doubtful utility under the circum- stances. By law the district court can summon t o its aid a so-called posse comitatzss, consisting of a body of locaI crtlzens armed t o enforce the court order. The unllkelihood of the adoption of this technique suggew that responsibility for enforcement of the law would then rest squarely m71th th3 President. He would be un; der a clear mandate to secure corn: pllance with the law as declared by the federal cou,rts. By the same token, negotiation of a ccsettlementy’ would be dearly inappropriate. In view of the President’s obligation t o “preserve. protect and defend the Constitution,” he might fmd , i t necessary to resort to force of some kind in the event of ‘adamant re- sistance. Some ,time ago the, Presi- ’ dent indicated that he could con- ceive of no circumstances which would justify calling out federal troops. I n light of his telegram t o Governor Faubus and the subse-’ quent developments in Arkansas, the earlier statement must now be, un- derstood as an approprlate ,re- luctance t o resort to armed force. Despite that ’ reluctance, he surely could nor long abide ‘state use of National Guard troops, in defiance of federal authoiity. After all, .the Natlonal Guard units are equipped

a t the expense of the Federal Gov- ernment, and, according to Article I1 of the Constitution,’the President is commander-in-chief of those units “when called into the actual service of the United States.” Indeed, he has express statutory authority t o do just that (10 U.S.C. § 332) :

Whenever the President considers that unlawful obstructions, combina- tions, or assemblages, or rebellion against ‘the, authority of the United States, make it impracticable to en-

” force the laws of the United States in any State or Territory by the ordi- nary course of judicial proceedings, he may call into Federal service such of the militia of any State, and use such of the armed forces, as he con- siders necessary to enforce these laws or do suppress the rebellion.

Thus, the President could call di- rectly ipto federal se&e National Guard troops being used by state officials to thwart enforcement of federal law. Alternatively, tbeh Presi- dent , codld dispatch units, of the regular United States Army t o any affected area, with orders to take command and restore compliance with law. I

Obviously, these are drastic meas- ures’ which would be unlikely to ease the way to desegregation. But state defiance sf Iawful federal au- thority may not be tolerated. This would no longer be state sovereignty but state anarchy.

, ’ WITH LIGHTS and clatter like those of a pin-ball machine, - the

L scoreboards of American prosperity continue to rack up ever more im-

h pressive totals. The latest bell rung by the economy is the unprecedented cutput of goods ,and services. Mid- summel; saw the nation’s Gross Na- tional ’ Pr,oduct reach $433.5 billions v MUR&J!Y-B. AKELD, a practicirLg socinl zuorher in Stamford , C o m e c t < -

izalio?; QI t he Nezu I‘o& School 01 Socid Work (Colwmbia Umiverhty) .

’ CU!, lfctlt,rCr 011 C ~ l ~ ~ ~ 7 ~ . l t n i t ? ) C’?gd?l-

r I , , Sspgeahber 28, 2957 b-

, ,

“a four-billion increase’ over the first decent shelter, let alone the vine- ’ quarter. Jobs, at 6’7.2 million,. $SO covered cottage, simply hasn’t come . set a ‘record. T o top it off, personal true. At the peak of America’s wealth income reached $324 billions, the ’ and power, “one-third of the nation” highest per capita amount ever at- is no longer “ill-fed” or “ill-clothed,” tained in the United States. but i t is still appallillgly housed. 1

There seems, however, t o be, an ’ , Last May A~.chitectzwaZ Fovzrm off-beat note to the steady sound of pointed out that “there are just the spinning wheel of ,fortune. The ’ about as many unsanitary, congested discord is struck by the housing situ- and dilapidated , homes in the atibn. Somehow, ip the vast out- United States as there were in pouring of goods, services’ and per- the mlddle of the Depression-prob- scrnal income, the housing promise , ably with more people living in has not paid off. 1 For millions of them.” This conclusion is obvious to American families, the dream of anyone who looks closely at t h e