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Court and was decided in favor of a Negro student, Lloyd Gaines, who was seeking a mandamus to compel the University of Missouri to admit him as a student in the law school. Lacking a law school in the State University for Negroes, the State had offered to pay Gaines' tuition in some other State, but that was not acceptable to Gaines. The Court held that the payment of tuition fees in another State did not remove the discrimination within the State, which provided legal education for white persons but not for Negroes. The Court said that the obligation of a State to give the protection of equal laws can be met only where its laws operate, and therefore the equality of right must be maintained within the State. The Court also affirmed that the student's right to the educaton sought was a personal one, and that as an individual he was entitled to the equal protection of the law, whether or not other Negroes sought the same opportunity.
The two Maryland decisions dealt with efforts of a Negro school principal, Walter Mills, to challenge the constitutionality of the differential for Negro teachers in the State minimum-salary schedule in the Maryland statutes. These cases were tried before the United States Circuit Court of Appeals, Fourth Circuit. The first suit, Mills v. Lowndes (26 F. S. 792), was dismissed. One basis for dismissal was the fact that the suit was against the State board of education rather than the county board, whereas the county board is free to pay salaries in excess of the minimum required by law and several counties do pay equal salaries to white and to Negro teachers. It was pointed out also that the statute refers to teachers in "public schools for colored children” and not to “colored teachers." The decision on the second suit, Mills v. Board of Education of Anne Arundel County (30 F. S. 245), authorized an injunction to restrain the Anne Arundel County Board of Education, after September 1, 1940, from making any distinction solely on the grounds of race or color in fixing the salaries of white or colored teachers. The judge did not “find it necessary to expressly decide that the State minimum statute for white teachers is necessarily on its face unconstitutional, because it is the county practice rather than the terms of the statute which prejudices the plaintiff.”
The fourth decision, Alston v. Board of Education of the City of Norfolk (112 F. 2d 992), was also rendered by the United States Circuit Court of Appeals, Fourth Circuit. A Negro teacher of Norfolk, Va., M. O. Alston, had brought suit on behalf of himself and the Negro teachers' association, of Norfolk, (1) to obtain a declaratory judgment on the unconstitutionality of the discriminatory salary schedule then in effect, and (2) to obtain an injunction to prevent further discrimination.
After disposing of various technical issues as to the right of the parties concerned to sue and be sued on the question at hand, the Court held that the policy of paying lower salaries to Negroes than to white persons, for services of the same kind and character, "is as clear a discrimination on the ground of race as could well be imagined and falls squarely within the inhibition of both the due-process and the equal-protection clauses of the fourteenth amendment." In view of the fact that the lower court had dismissed the action without trial, the case was remanded for further proceedings, with instruction that if the facts claimed were established the plaintiffs would be entitled to the declaratory judgment and to the injunction sought. An appeal to the United States Supreme Court for a review of this decision was denied by the Court.
2. Financial Implications The recent Court decisions reemphasize the point that the constitutional duty of the several States that maintain separate schools for Negroes is to provide schools, colleges, and universities for Negro students that are equal to those provided for white students. In the words of Chief Justice Hughes:
"The admissibility of laws separating the races in the enjoyment of privileges afforded by the State rests wholly upon the equality of the privileges which the laws give to the separated groups within the State.3
The definition of "equality' is one of the basic issues in each court case that has arisen. The Missouri decision was far reaching in its denial of the assumption that paid scholarships in other States represent equality in higher education. The Maryland and Norfolk decisions were likewise far reaching in their affirmation of the constitutional right of Negro teachers in public school to the same salaries as those paid to equally qualified white teachers for services of the same kind and character.
One rough measure of equality of educational service may be that of cost. In one specific situation the school program for Negroes might cost more per pupil 3 State of Missouri v. Canada (59 S. Ct. 232, 236).
than the same program for white pupils; in another the Negro program might cost less. In general, however, it would seem that the differences would even out and that the cost would be about the same if similar courses of study, school terms, school buildings, salary schedules for teachers, instructional materials, supervision, and auxiliary services were maintained.
This section presents some estimates on the amount of additional money that would be needed in certain States to provide as well financed an educational program for Negroes as is provided already for white pupils. The figures given are merely rough approximations, based for the most part on regional totals rather than on a State-by-State analysis.
Higher education.-If the students in publicly supported colleges and universities for Negroes in the Southern States had been receiving as costly a program of education in 1935–36 as was being provided to white students in the same States, at least $4,000,000 more would have been spent in the Negro institutions. But less than 2 percent of the young Negroes of 18 to 22 years of age were in college, as compared to nearly 7 percent of the corresponding white population. If 7 percent of the Negro youth had been in college, the added expenditure would have been not less than $30,000,000.
The added expenditures just mentioned include capital outlay and assume that a proportionate amount of the year's experditure for Negro pupils would have been used for new buildings. But existing buildings were not equal in value to those provided for white students. It would have cost about $7,000,000 to increase the existing plant for Negro students already enrolled to the same standard of value as that reported for white students. It would have cost about $80,000,000 to provide buildings and equipment for the hypothetical enrollment of Negro students on the same population ratio as white students.
Elementary and secondary schools.—One of the issues to which attention has been called by the recent court decisions is that of salaries of Negro teachers. In 15 of the Southern States the majority of Negro teachers receive lower salaries than white teachers in similar positions. These 15 States already pay more than $30,000,000 to Negro teachers. If the average salary of this group in 1938 had been raised in each State to the average paid to white teachers, an additional $25,000,000 would have been needed to pay the difference.6 In 4 of these States, the added sum would represent 10 percent or more of the total amount spent for elementary and secondary schools in 1937–38.
If the cost of the total school program, not salaries alone, were equalized, still larger sums would be needed. An estimate has been made of the funds needed to provide Negro pupils with a total school program costing the same amount per pupil as the program provided to white pupils. In 1937-38, for the pupils actually enrolled in schools for Negro pupils, the added expense would have been more than $80,000,000, or about 18 percent more than was spent for elementary and secondary schools in the 15 States concerned.
Suppose that per capita costs for Negro pupils were the same as for white pupils. Suppose, also, that Negro children aged 5 to 17 years were enrolled in school in the same relative numbers as the white children. The extra cost of the school program would be nearly a hundred million dollars a year. The annual revenues for public-school support would need to be increased by at least 20 percent.
But what about school buildings? The schools for Negro children have been poorly housed in many areas. In 1935–36 the per pupil value of Negro school buildings in the 15 States was about one-fourth of the value per pupil of buildings used by white pupils. It would have cost over $300,000,000 to have built for the Negro pupils then enrolled a school plant equal in value to the buildings for white
4 Estimates of the research division of the National Education Association, based on figures in (1) L. S. Department of the Interior. Office of Education. Biennial Survey of Education in the United States: 1934-36. Bulletin, 1937, No. 2. Washington, D. C.: Government Printing Office, 1938. Vol. IV, Ch. 2, Statistics of Higher Education, 1935–36. Separately printed, 351 pp. (2) Blose, David T., and Caliver, Ambrose. Statistics of the Education of Negroes, 1933–34 and 1935-36. U. S. Department of the Interior, Office of Education, Bulletin, 1938, No. 13. Washington, D. C.: Government Printing Office, 1939, 67 pp.
The estimates include the 17 States and 1 district where separate institutions are maintained as follows: Alabama, Arkansas, Delaware, District of Columbia, Florida, Georgia, Kentucky, Louisiana, Maryland, Mississippi, Missouri, North Carolina, Oklahoma, South Carolina, Tennessee, Texas, Virginia, and West Virginia
6 In Delaware, the District of Columbia, and West Virginia equal pay to white and Negro teachers is guaranteed by statute. 6 Estimates by the research division of the National Education Association on the basis of data in
(1) U. S. Federal Security Agency, Office of Education, Biennial Survey of Education in the United States: 1936–38. Bulletin, 1940, No. 2, Washington, D. C.: Government Printing Office, 1940. Ch. II, Statistics of State School Systems, 1937-38. Separately printed, 178 pp.
(2) Blose, David T., and Caliver, Ambrose. Statistics of the Education of Negroes, 1933–34 and 1935-36 Bulletin, 1938, No. 13. Washington, D. C.: Government Printing Office, 1939. 67 pp.
pupils.? To have housed the potential Negro enrollment of school age but not in school would have cost many millions more.
Schools and colleges combined.—Annual revenues of more than $85,000,000 over and above what are now available would be needed to finance Negro education on approximately the same basis as education for white pupils in the Southern States. A preliminary expenditure of more than a quarter of a billion dollars for capital outlay would be needed also. These figures assume the present basis of enrollment in relation to the Negro population; much greater amounts would be needed if Negro youth entered high school and college in the same proportion as in the white population.
Negro teachers in Delaware, the District of Columbia, and West Virginia are protected by statute against salary differential based on race. It is in the remaining 15 Southern States where the real financial problem would arise if an effort were made to raise Negro school costs to the same level as in schools for white pupils. When their limited economic resources are recognized, these States are at least on a par with the rest of the country in the generosity of their support of public education. Eleven of the 15 States are above the national average in the proportion of total State and local tax revenues devoted to public elementary and secondary schools.8 And yet, when the 48 States are ranked in order as to school costs per purpil enrolled, the 11 places at the bottom of the list are taken by 11 of these 15 States.' These average cost include both white and Negro pupils. If by some leveling process the present school funds could be equally distributed between white and Negro schools, the per capita cost for all pupils would remain as it is now—far below the average for the Nation. To raise the level for Negro schools to that for white schools, without lowering support for white schools, would require an increase in school funds of more than 15 percent in 9 of the 15 States. In 2 States a 50-percent increase in school funds would be needed.
3. Efforts by States and Localities to Meet These Problems In January 1941 the Research Division collected information from State departments of education and large city school systems in the South, on steps being taken toward adjustment of salaries of Negro teachers following the recent judicial decisions. Among the replies from places where the problem had come up for consideration, the following are illustrative:
Alabama.-A. H. Collins, State superintendent: "The State Board of Education of Alabama on December 10, 1940, considered this matter at length and instructed the State superintendent of education and his staff to make a study of this whole problem in order that the State board of education might have available adequate information upon which to take proper action.
“On January 27, 1941, I called the Alabama Association of School Administrators together for the purpose of discussing the problems arising from the decision of the United States Supreme Court. The association of administrators appointed a committee for the purpose of advising with the staff of the State department of education in preparing recommendations for possible policy changes.
"The amount of funds available for the support of public education in Alabama is so limited that it does not appear at this time to be possible for us to arrive at a satisfactory solution of this matter. I believe that the Southern States cannot hope to equalize educational opportunities between the two races until substantial amounts of Federal aid are available to supplement present State and local funds."
North Carolina-Clyde A. Erwin, State superintendent: “In this State we have been working several years toward the gradual equalization of white and Negor salaries. We have an agreement now with the Negro leaders of this State to the effect that we will make every attempt possible to complete this equalization within the next 4 or 5 years."
Louisville, Ky.--Zenos E. Scott, superintendent: "On April 20, 1939, the board of education of Louisville adopted a resolution in which the inequality between salaries of white and colored teachers was recognized, as was the fact that this inequality should be eliminated. A plan was adopted under which the differential was to be eliminated over a period of 5 years, one-fifth of the
? Estimates of the research division of the National Education Association, based on figures in (1) U.S. Department of the Interior, Office of Education. Biennial Survey of Education in the United States: 1934-36. Bulletin, 1937, No. 2, Washington, D. C., Government Printing Office, 1938. Vol. IV, ch. 2, Statistics of Higher Education, 1935–36. Separately printed, 351 pp. (2) Blose, David T., and Caliver, Ambrose. Statistics of the Education of Negroes. 1933–34 and 1935-36. U. 8. Department of the Interior, Office of Education, Bulletin, 1938, No. 13. Washington, D. C., Government Printing Office, 1939, 67 pp.
8 National Education Association, Research Division. State Comparisons on School Support. Washington, D. C.: The Association, 1941. Pp. 14. (Memo.)
• Ibid., p. 9.
differential to be paid each year. The 1940–41 contracts of the colored teachers made provision for this.
“On December 3, 1940, representatives of the colored teachers waited on our board of education and requested it to agree that in the 1941-43 budget request it would ask for sufficient funds to remove all of the existing differential between salaries of white and colored teachers.
“Under date of December 21, 1940, in a letter to the mayor and the board of aldermen, our board of education stated that as a policy full equalization would be made for the school year beginning September 1941."
Norfolk, Va.-Agreement reached in the case of Melvin 0. Alston v. School Board of the City of Norfolk;
“(a) That the defendants in the above-entitled case pay all court costs up to the termination of the action.
"16) That the defendants remove all differentials in salaries because of race or color between white and Negro teachers and principals on the basis of not less than one-third each calendar year starting January 1941 provided, however, That if the city of Norfolk is financially unable to pay one-third this year that the teachers will accept the $30,000 on the differential for the calendar year 1941 and an additional sum of not less than one-half of the balance for the calendar year 1942; for example, assuming that the differential is $130,000, $30,000 will be applied during 1941 toward removing the differential and an additional sum of not less than $50,000 will be applied for the calendar year beginning January 1942. That starting January 1943 salaries will be completely equalized and thereafter no distinction in the fixing of salaries will be made on the basis of race or color.
“(c) That starting January 1941 all increases and increments to teachers and principals over and above the increases mentioned in paragraph (6) be on equal basis without regard to race or color upon the condition that the differentials in increments between the white and Negro teachers in the year 1941; be paid to each Negro teacher and principal in a lump sum in January 1942; for example, each Negro teacher and principal shall receive an amount which when added to the regular increment received in 1941 will equal the maximum increment received by any white teacher on the same teaching level in 1941.
(d) That during the years 1941 and 1942 temporary salary schedules and working memoranda for each year be established and submitted to the plaintiffs which will clearly set forth the amounts of salaries to be paid all Negro teachers and principals, and that the Negro teachers and principals be furnished immediately copies of the permanent salary scale for teachers and principals of the city of Norfolk."
It is clear that educational leaders in the South are aware of this problem and are trying to find a way to meet the need. Many of these replies, however, reflect the feeling that, in spite of the best efforts of the Southern States, the problem cannot be met adequately without help. If the programs for white and for Negro education are equalized from State and local funds only, it will mean in some places a retrenchment rather than an advance for the white schools and it will mean that any new developments or enrichment of the total program will be out of the question for some time to come. For example, the maximum teaching salary provided in the North Carolina State schedule in 1940-41 was $1,024 for white teachers. In Georgia it was $560. Substantial upward revision of these salaries would be very difficult to achieve at the same time that Negro salaries were being equalized. The reply from one State department of education illustrates the feeling that Federal aid is the only practical solution possible:
“This decision has not affected the conditions in our State. We have not as yet made any changes and do not see how it will be possible to make any such changes until additional revenues from the Federal Government or from some other source can be secured.
“It seems to me that this court decision makes it absolutely mandatory that Congress immediately appropriate large sums for general educational purposes to be distributed on an equalization basis. The South cannot pay Negro teachers the same salaries as those received by white teachers without greatly crippling our educational system.
I should think that Congress would be willing to appropriate large sums of money to enable the South to bring about a more equitable plan of operation. Not only do we need additional money for Negro teachers' salaries but we need additional funds for our white teachers.”
4. Responsibility of the Federal Government The problem of financing Negro education is localized in the South, but its causes and its effects concern the Nation as a whole. A change in national policy policy in the 1860's first presented the problem of Negro education to the South
ern States; it is the Federal courts that now are maintaining the principle of equal educational opportunity. And in all the past 75 years, the migration of poorly educated Negroes from the South, and the economic handicaps suffered by the South, have been influencing the social and economic status of the Nation as a whole.
A statement of the Federal Government's responsibility in the education of the Negro, made in 1927, by Ellwood P. Cubberley, summarizes the issue as follows:
Up to the time of our Civil War slavery was a national institution, and the Negro was with few exceptions held under slavery, segregated in location, and regarded almost wholly as a chattel without personal rights. The Emancipation Proclamation, which announced his freedom, was an act of war by the Nation in an effort to win the struggle for the northern side and thus preserve the Union. After the close of the war the thirteenth amendment to the Constitution confirmed what the Emancipation Proclamation had attempted in freeing the Negro from the bondage of slavery. The fourteenth amendment admitted him to citizenship, and the fifteenth amendment made him a voter.
“All these national acts made the Negro a political as well as an economic factor in our national life. Freedom of movement has since made him an important health and public-welfare factor as well. Considering him as a voter and a citizen, literacy and citizenship training have become important, and his peculiar mental make-up and character have made his vocational and industrial education almost a necessity.
"Education for the Negro is not a question of equality for the races, or one of sentiment for the advancement of a former subject race, but rather one of protection and progress for the State. The Negro is now a part of our national citizenship, and we cannot send him away or undo what has been done in making him a free man and a voter. Our problem is to prepare him for as intelligent use of his rights as can be done, and to make his presence among us as useful as possible.
Although it was the Federal Government that freed the Negro and made him a citizen and a voter, the amendments to the Federal Constitution by which this was done were not concurred in by the States where the Negro largely lived. They were part of a coercive policy of the North against the States which had been in rebellion. These States had been impoverished and devasted as a result of the fortunes of war, and the close of the strife found them neither able nor willing to educate the Negro, nor have they since been able to handle properly the problem thus thrust upon them.
When we summarize the situation as it exists today, we find the following significant points leading conclusively to the need for Federal aid:
1. National policy rather than State policy has created the necessity (a) for educating the Negro and (b) for equalizing the educational opportunities of whites and of Negroes.
2. An initial capital outlay program of not less than a quarter of a billion dollars, and an additional annual expenditure thereafter of more than $85,000,000 would be needed to raise the support of Negro schools to the same level as white schools in the South. The annual expenditure alone would represent an increase of nearly one-fifth in total public school revenues.
3. Although schools for white pupils in the South are being supported somewhat more liberally than schools for Negro children, the total expenditures are relatively very low. The total school cost per pupil enrolled in the Southern States averaged less than $50 in 1937–38; for the country as a whole including the South, the cost per pupil was $86.
4. The limited economic resources of the South and the relatively large numbers of children make the total problem of education especially difficult in that area. Income payments to individuals in Southern States are comparatively very low. National income per pupil enrolled for the country as a whole was $2,550 in 1938; it was $1,470 for the 15 Southern States.
5. The Southern States already are above the national average in the proportion of public funds devoted to public education.
6. The Southern States have made greater progress than is found in the majority of other States (a) in organizing large school units that are economical to administer and (b) in financing education with a large proportion of State support.
7. The Southern States already are making a maximum effort, as compared with other parts of the country, to finance education. If it is to meet the added financial burden of complete equalization of education for Negro pupils without a major retardation of the total progress of public education, Federal aid for general education must be available.
10 Cubberley, Ellwood P., State School Administration. Boston: Houghton Mifflin Co., 1927. 774 pp. 57.