The private schools now operating in Virginia have limited their admissions, to the best of my knowledge, to white pupils only. This condition may change in time; nothing prevents the organization of nonprofit schools for Negroes only, or for Negroes and whites together. In any event, the right of any group of parents to found a school to their taste would appear beyond successful challenge. “The most natural right of man,” said Tocqueville, “next to the right of acting for himself, is that of combining his exertions with those of his fellow creatures and of acting in common with them. The right of association therefore appears to be almost as inalienable in nature as the right of personal liberty. No legislature can attack it without impairing the foundations of society.”
Virginia is feeling its way carefully with the freedom-of-choice program. In the 1960-61 school year, 8127 pupils (or a little less than 1 per cent of the 874,000 children in public schools) gave up their right to attend a public school and chose, instead, to exercise their rights under the 1958 law. They obtained grants amounting to $1.8 million out of total school spending (including sums for capital outlays) of some $290 million. Public school administrators, many of whom are fearful of private school competition and jealously opposed to the program, tend to regard the grants as a net cost—as something taken away from them. Plainly this is not true. About $200,000 in grants were taken by pupils who applied the sums to tuition costs in neighboring public schools, as in Charlottesville and Norfolk; other outlays were offset by the simple absence of the pupils from public schools—the State did not have to build classrooms or hire teachers to teach them. When it is kept in mind that the nonprofit private schools must meet their own capital costs from contributions and endowments, the prospect of an ultimate saving to the Commonwealth becomes evident. These construction costs are a part of the price a free people should be permitted to pay for freedom to conduct their lives as they wish. It is inconceivable that Federal courts should outlaw this voluntary, nondiscriminatory plan as a mere subterfuge or circumvention of the Brown decision. It emphatically is not.
In Pierce v. Society of Sisters (268 U. S. 510) the Supreme Court laid down the principles on which Virginia is relying. The opinion held unconstitutional an Oregon act of 1922 requiring children of that State to attend public schools and public schools only. A private military academy and a Catholic parochial school complained that the law violated the right of parents to choose schools for their children where the pupils would receive the sort of training the parents wished them to have; beyond that, the law violated the right of private schools and teachers to engage in a useful and lawful business or profession.
A unanimous court, speaking through Mr. Justice McReynolds, accepted the plaintiffs’ position entirely. Oregon’s law “unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control.” Their rights in this regard are guaranteed by the Constitution and may not be abridged by legislation which has no reasonable relation to some purpose within the competency of the State. “The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.”
As Douglas said in Lerner v. Casey (357 U. S. 468), the liberties guaranteed to the citizen by the First and Fourteenth amendments include “the right to believe what one chooses, the right to differ from his neighbor, the right to pick and choose the political philosophy that he likes best, the right to associate with whomever he chooses, the right to join the groups he prefers, the privilege of selecting his own path to salvation.” And in a case upholding the right of Negroes to associate, Mr. Justice Harlan expressed for the court the same view that white parents take in forming a private school for their children: “It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the ‘liberty’ assured by the Fourteenth Amendment.” (NAACP v. Alabama, 357 U. S. 449.)
The high court’s opinion in the School Segregation Cases did nothing to interfere with these basic concepts of individual freedom of action in areas of education. It is important to understand, the Fourth U. S. Circuit Court of Appeals has said, “exactly what the Supreme Court has decided [in Brown] and what it has not decided in this case”:
It has not decided that the Federal courts are to take over or regulate the public schools of the States. It has not decided that the States must mix persons of different races in the schools or must require them to attend schools, or must deprive them of the right of choosing the schools they attend. What it has decided, and all that it has decided, is that a State may not deny to any person on account of race the right to attend any school that it maintains. This, under the decision of the Supreme Court, the State may not do directly or indirectly; but if the schools which it maintains are open to children of all races, no violation of the Constitution is involved even though the children of different races voluntarily attend different schools, as they attend different churches. Nothing in the Constitution or in the decision of the Supreme Court takes away from the people the freedom to choose the schools they attend. The Constitution, in other words, does not require integration. It merely forbids discrimination. It does not forbid such segregation as the result of voluntary action. It merely forbids the use of governmental power to enforce segregation. The Fourteenth Amendment is a limitation upon the exercise of power by the state or State agencies, not a limitation upon the freedom of individuals.
This interpretation by an exceptionally able appellate court offers the South, if only the South will accept it (and if our more rabid and influential friends in the North will abate their impatient demands), some basis for a tolerable way of life. In its immediate application, the Supreme Court’s decision in the four suits decided by Brown was not, of course, “the supreme law of the land.” It was, as every court opinion must be, simply the law of the case, disposing of the controversies between the named plaintiffs and the named defendants. Even though such suits are “class actions,” the class in each case is limited by such facts as those of geography; a court order directed against Clarendon County does not require the superintendent of schools in adjoining Sumter County to do anything. Thus, under well-accepted principles of law, the counties and cities of the South that are not under court order stand under no legal obligation to alter their traditional school policies. No law or court order requires them to integrate; no law or court order requires them affirmatively to take any action. True, if a point is made of it, and formal complaint of discrimination is filed, local school officials must then yield to the principles laid down by the Supreme Court; they can yield voluntarily, or they can go through the motions of a predictable court proceeding, but they cannot deny the child by reason of his race the right to attend any public school under their supervision.
This deliberate, unhurried view of the school problem tends to madden the professional integrationist. He looks at the progress of desegregation in the South, eight years after Brown, and apart from the border States he sees:
| Desegregation of Public Schools, Eleven Southern States, May 17, 1962 | ||||
| Negroes in Schools | ||||
| Enrollment | With Whites | |||
| State | White | Negro | Number | Per cent |
| Alabama | 523,000 | 276,000 | 0 | 0.000 |
| Arkansas | 320,000 | 109,000 | 151 | 0.139 |
| Florida | 927,000 | 242,000 | 648 | 0.268 |
| Georgia | 642,000 | 303,000 | 8 | 0.003 |
| Louisiana | 450,000 | 295,000 | 12 | 0.004 |
| Mississippi | 294,000 | 287,000 | 0 | 0.000 |
| North Carolina | 787,000 | 333,000 | 203 | 0.061 |
| South Carolina | 364,000 | 265,000 | 0 | 0.000 |
| Tennessee | 663,000 | 155,000 | 1,167 | 0.750 |
| Texas | 1,892,000 | 301,000 | 4,000 | 1.330 |
| Virginia | 657,000 | 217,000 | 536 | 0.247 |
| Source: Southern School News, May 1962. | ||||