I

M a y I?, 1954: We conclude that in

the field of public education the,
doctrine, of separate but equal has I
noplace: Separate educational f a d ities are inherently unequal.
M a y 31, 1955: Full implementation
of these constitutional principles may
require solution of varied local school
problems. Social authorities have the
primary responsibility for elucidating, assessing, a n d solving these problems. . . Because of their proximity
t o localconditions and t h e possible
need for further heanngs, the courts
(should) enter such orders and decrees consistent with this opinion as
are necessary and proper to admit to
publicschools on a racialIynondiscriminatory basis with all deliberate
speed the parties to these cases.
Thus, with dignity and quiet eloquence
the
Supreme
Court
abandoned the outworn doctrine of separate but equal anddecreed t h a t the
change-overshouldbemadewith
all deliberate speed.
September, 1957, marks the beginning of the fourth school year since
the originaldecision
of theUnited
States Supreme Court in the Schodl
Segregation Carer. EachSeptember
has seen additional
thousands
of
Negro children actually in attlendance
atformerly all-whitepublicschools
or
in
so-called integrated
situations. There are now about two million whites and 350,000 Negroes who
have to date beendirectlyaffected
by the. principle of equality without
discrimination. TheDistrict of Columbia schools arefullyintegrated;
fourformerlycompletelysegregated
stateshavenow
desegrqgated more
than half of their school districts
(Kentucky, Maryland, Missouri and
Oklahoma);
and
five
states
have
partially
desegregated
(Arkansas,
Delaware,NorthCarolina,Tennessee andTexas).Thusonlyseven
states have not yet begun desegregation (Aiabama,
Florida,
Georgia,
Louisiana,Mississippi,Sourh
Carolina and Virginia). But even here the
breach has commenced: In Louisiana

RBBBPIT McKAY

law, New
. Schol.

988

York

i5 professor of
U n i v e r ~ i t y Law

andVirginiaNegroes
are- admitted
tostate
schools attheuniversiry
level.
As the area of uncompromising resistance
inescapably
narrows,
new
measures of recalcitranceare sometimes demonstrated. In this situation
lie the seeds of a cdsis in constitutional
power,
germinated
in
Lirtle
Rock, but sign~ficant farbeyond t h a t
epiiode
and
that
community.
For
the first time slnce the School Segregation Ca-res were decidedin
1954,
a stategovernororderedout
Local
units of the National Guard to prevent enfQrcement of a federal court
desegregation order.

IT wassurprising,indeed, that this

form of drastic actian should first occur in Arkansas, where i t seemed out
of keeping with the state$ moderare
tradition and with previousindications of the sentiments of the states
chief executive,GovernorOrval
E.
Faubus,whohad
opposed and defeated
the
violently
segregationist
elements of the state only the year
before. To be sure,one might have
expected the Governor and the state
alike t o bemoderatelyopposed
to
enforcedintegration;butresistance
to the Little Rockschool boards own
plan, as supported b y a federal court
order, was quite a differentthing.
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 litigation. Moreover, several public-school
systemshadbeensuccessfullyintegratedinArkansaspriorto
19i7,
while others-Fort
Smith, Ozark and
Van Buren-commenced
integration
withoutincidentatthesame.time
thattheLittle,Rock
episodewas
building up.
The facts of that controversy are
simpIe. For more than two years the
LittleRock SchoolBoard
hasbeen
worki,ng on a plan of gradual desegre-:
gation, Theboardplan,
while CORcededly devised in good faith, a t first
brought more satisfacrion to segregationists than to the Negro parents in
8

thecity. It called for an eminently

gradualprogram,beginnihgwitha
change-overinthehigh schoolin 1957,
then working gradually through the
othergradesovera
six-yearperiod.
T h e sufficiency of the plan in light
of the School Segregation Cares was
challenged b y Negro parents, but upheld in the federal distIictcourts in
1956 andon .appeal in April, 1957.
In lateAugust,
1957, a suit was
brought in statecourtby
a white
parent seekinga
stay of thehigh
schooldesegregation.Although
not
a party in t h a t proceeding,. Governor
Faubus testified as to the
likelihood
of bloodshed and mob violence, and
thestatecourtjudge
ordered discontinuance of the integration plans.
This was immediately upset by Federal District Court Judge Ronald N.
Davies who, ineffect,enjoined
the
statecourt
from enterrainingsuch
actions; but of course it had no directly coercive, effect upon the Governoras a basis forcontemptcitation for hissubsequentaction.

THE DAY before classes were t o be-

gin the Governor made explicit Fis

fears of violence-he spoke of caravans of segregationistsconverging
on LittleRockand
of Negropurchases of knivesand called out the
National Guard to maintain order.
If anyuncertainty remained as T O
the troops missioh-preventing
Negro enrollment-that
doubt was dispelled when he said: The inevitable
conclusion is t h a t t h e schools must
beoperatedastheyhaveinthe
past.
Thus the desegregation controversy
enteredanewphase.Forthefirst
time troops werecalled out ostensibly
toprevent violencewhich hadnot
yet occurred, ,and the threat of which
was denled by the very people most
likely t o know-the
mayor of the
affected communityand th& school
board. The troops did what was
expected of them: The 270 National
Guardsmen on duty the fiiit day of
school, andsmallernumbersthereafter,permittedthewhite
children
toenterthehigh
school andpreventedtheadmission
of nineNegro

The NATION

students who sought to enter. Similarly, the federalcourtdld

what
might be expected of the local representative of the supreme judicial authority: Judge D a v m ordered school
officials to disregard thetroopsand
permitNegroes
to attend.Indeed,
lrater when the school board itself began to waver and sought a temporary
stay of the order, Judge Davies called
thelr petition anemic and reasserted his order or Immediate admission
of the students.
It I S hardlysurprising that a few
days1 after GovernorFaubusprediction of violence, bloodshed and
mob riots,)1 a disorderlycrowd
assembled at Little Rocks Central
High School. Such a prpphecy, of
course, tendsto
become self-fulfilling. The Governors prediction had
the effect of a call t o vlolence. However, the mildness of the local temper
on the issue was demonstratedby
the fact that the
Governors action
summoned n o more response than a
small crowd of townspeople more
glven to noisy curiosity t h a n t o riot.
Undoubtedly, if theGovernorhad
remained
silent,
the prediction of
Little Rock Mayor Woodrow Wilson
Mann would have been fulfilled and
the integratlon would haSe proceeded, without event. As the Mayorput
it, the Governor called. out the NationalGuard t o put down trouble
where none existed." And he added,
If any racial trouble does develop
the blame rests squarely on the doorstep of the governors mansion :- .
I n examining the course 01 actionpursued by Governor tFaubus,
.the legal problemsare not difficult.
A governor is no less subject t o the
law of the land than a n y other person; for any violation of those principles tvhich he is sworn t q uphbld,
he is subject t o the same restraints
and,penalties as otherindividuals.
In short, to the extent that he acts
in, excess of his constitutionalauthority, he is not protdcted by sovereign immpLty. The central issue is
one of .:determining GovernorFaubus authority,whether he actedin
excess Thereof, and, if so, what sanctions ma,jl:be imposed.
It is, of course, axiomatic,,that matters of local orderarewithin
the
police-power jurisdiction of the state.
is normalfor
Wlrhinthestate,it

SL p r ~ n 1 L J c 123, I?S?

If it be assumed that the Governor

matters relating t o a particular comwas entitled to declaTe a state of inmunity t o behandled by the local
surrection and t o bring military force
authoritles of that communrty,into the aid of 6vil authority, the
cluding the police. State assistance is1
proper
use of that power in this invrdrnardy given only as needed and
stance was to maintain che federal
requested bythe
local authorities.
court in the exercise of its jurisdicThis,for example, is thewaythe
tion and not to attempt to override
Clmtondisturbancesin
1956 were
it; to aid in making its process efhandled.When the local officials of
fective and not to nullify it; t o ret h a t smallcommunityfound
that
move, and not t o create, obstructions
to the exercise by the complainants
they were unable t o cope with the
of their rights as judiciallydeclared.
dlsorder, they called on the state for
assistance, which was promptly supplied by GovernorClement
ii1 the LANGU-4GE more directly relevant
form of National Guard troops. There, to the action of Governor Faubus can
be
imagined.
His use of
however, the troops were used t o en- scarcely
sure compliance with the desegraga- troops to prevent enforcement of the
tion order; the troops themselves b e courtorderthusmakesirrelevant
came ins trumentallties in the enfqrce- any discussion of $he, Governors
of disorder.&e
ment of the rule of law. How differ- good faithfear
ently the somewhat parallel situation used the troops for what was neceg.inLittleRock was handled. Where
the sarlly an unlawful purpose-defeating the federalcourtorder.
To s a y
local authorities, after careful prepathe least, studied disregard ,of law is
ration over a two-year period, found
support
no evidence of disorder beyond their scarcely good-faith action in
capacity t o handle, the Governor, of law. It seems clear then that the
over local protest,ordered the Na- keepn?g of troops at any schobl,
tional Guard into action. Even more Little Rock or elsewhere, to prevent
the enforcement of afederalcourt
objectionableis
thefactthatthe
troops were not employed t o imple- desegregation order is an interference
ment the validcourtorder,
but t o wrth federal supremacy. Accordingly,
a show cause order in such ,circumprevent compliance with its terms.
An instructive parallel is found in stances could be decided in only one
the onlyinstancein
which the SU- way, forthere is no legal justificapreme Coui-t has, decided the merits tion for, such a course of action. FoIof a controversy involving the use of lowing the issuance of such an order,
theNationalGuardtoprevent
en- a n y failure t o complywith the inrequirements
would,
of
forcement of a federal court decree. junctive
violato;, govAs Chief Justice Hughes put it em; course, subjectany
troop
commander,
or other
phaticallyinthat
case, SterEiNg o. ernor,
ConstagLtir, 287 U.S. 378, 404 person made subject t o t h e order, to
the possibility of acontemptcita( 1932) :
,

tion. And in the circumstances postulated there appears to be n o doubt

order
would
be
t h a t , a contempt
sustainedsby the Supreme Court. The
result could scarcely be otherwiseunder a federal system in whrch t h e n a tionalauthority IS, as it necessarily
m u s t be, supreme.
the ultimate rights
Eventhough
are clear in this t y p e of situatlon, a
is
centralproblem.ofsomedelicacy
involved in the proper selection and
timing of the control
devices
by
whichtheproperendresultcanbe
assured with a m m i m u m of dislocationalongtheway.Theultlmate
source of executlveauthorityrests
upon thc President, and the responsibility for decision mustnecessarily
P h1a
Fortunatelvor not, solution
IT thesematterscanbesought
in
both
several
different
directions,
along
avenues
of strict
legal
authority and by way of persuasion and
disprestige.Eachchoicedeserves

cussion.

THOSE, WWb

are committed t o t h e
prolonging of school segregation have
repeatedly demonstrated strong imitatwe ability.
Whatever
device,
stratamem
or law proves useful as a techb
nrque of delay in one situation may
be expected t o be duplicated in other
places. Thus, to the extent that observers might believe Governor Faubus has developed a gimmick t h a t
will make integrationcomeharder,
variants on that scheme may b e anticipated. This, then, is the aspectof
Little Rock ,that carries the greatest
it
long-rangesignificance.Somehow
must be made very clear
to wouldb e i m i t a t o r s t h a tthis is n o t a scheme
likely to succeed. T h e schoolboard,
and t h e local federal
t h eM a y o r ,
court has each performed adequately and in the best traditon. But they
n e e d t h e s u p p o r t t h a t c a n c o m e perhaps only, and certainly best, from a
popular natlonal f~gure such as Presas m a n y
ident Eisenhower. Perhaps,
urge, he should have taken
a much
more vigorous stand in favor of early
he did. Perhaps
desegregationthan
too I-caddy with a
hewentalong
CCgradualism that has often meant
nornovement at all. But surely now
thathehasseendeliberatespeed
distortedintodeliberateevasion
time
in all too many instances, the

190

the certification of Allen University

graduates.
I am still a visitor in America,
year-old, lantern-jawed Hungarian
refugee whose averslon to rain is ex- Toth tells me as we stroll along, and
ceeded only by his love of freedom. I have no right to comment on your
internal affalrs. But, he 1 contlnhes
It was raining that night early in
1
1956 when Communist police im- inhalting English, you cansay
prisoned him for his
role
in the believe in freedom; that all people
Budapest rebellion. There was a arethe same; t h a t injustice is not
slight drizzle theday, last October, confmed to m y one country. I am
Toth walked out of prison and fled happy here and Intend to remain.
The home of university president
hishomeland. It rained in Paris the
night Toth and his mother s a d good- Dr. Frank Veal is quiet. He has had
bye near the Eiffel Tower as he pre- hls last say on the matter: State ofpared to sail for the refugee camp a t flclals, as you know, withdrew our
certification. This means our gradCamp Kilmer, New Jersey.
uates w ~ l ln o t be able to getteachIt is raining here and now-Mondlv. Se-rt-mber 16. 1957-as Andrk Ing certlflcates in thls state Our
Toth and I walked across the campus only comment IS that Mr. Toth will
of Allen University, where he has in- remain with us.
A small crowd of white gawkers
curred the wrath of segregationalists
the
as the firstwhite
studentto enrol1 has gathered peacefully near
atthis eighty-seven-year-old institu- campus, but Toth is unruffled. The
tion of the African Methodist Epis- world University Student Service
gave me my scholarship and I had
.
copal
Church.
Thei controversybegan
here last a complete briefing on the racial
month when Dean Arthur D. Green situation. I was afraid that some
announced that five scholarships had students would be-upset because of the
been allotted toHungarian
refugee uproar, but theyve been very nlce.
By noon today i t was clear that
of the
studentsupontherequest
United States Department of Health, the segregationists threat had faiIed.
Educationand
PublicWelfare,actOur students
have
nor: been
of frightened, registrar William Pering in concert with the Institute
International
Education
and
the
guese said, registration is normal,
World University Service. The re- if n o t , above. We had approximately
900 studentslastyearand
I expect
questhadthe
blessings of the State
Department.
t o matchthatthisyear,
Aslrea about the admission of the
As we continue across the campus,
whitestudentstothehitherto
all- Apdrk shrugs off mist questions conNegro campus, South Carolina State cerning race andintegration.
I want to get on with learning,
Attorney General T. C. Calllson said:
Thestatecannotprohibitthe
ad- he comments, I have always wantmission of whixe students a t Allen ed to paint and study the history
of
University as it is a private school. art. That is what I amhere for. I
However, such admissions will be might try out for one of the athletic
deemed againstpublic policy.
teams. I dont know yet.
Because of ,the controversy, there
I hope you dont mind making
was doubt that the Hungarians would this interview short,
adds
he
accept the scholarships, but on Satur- pleasantly, my room matearrived
day,September
14, Toth reglstered late
last
night. I was asleep and
in the College of Fine Arts. And this
didnt get,a chance to know him
morning-as the United Nations As- well. Im anxious to get back t o my
sembly headed for a showdown over room and see what kind of fellow Ill
fixing blame for theHungarian up- have to put up wlth for the year.
rising and its consequences-the fiveIn the center of down town ColummemberSouth Carolina State Board bia is he state Capitol bulldmg and
of Education
voted
unanimously South CarSiLL7- double motlo is
in the public interest, t o withhold etched in the cornerstone: ~!l&zm
opzbusq~teparati. ~ I L Yspiro
~
spero.
LOUIS E . LOMAX is a vete.ran That is to say, Preparedinmmds
aews-papeq correrpondsnt m d a \fwe- and resources. While I breathe I
hope.
lance writer.
Col~mbia,S.C., Sept. 16

ANDRE TOTH is a twenty-three-

T h e NATION

has come when he must take a more - contemptcitation,thecourt

itseIf
forthright stand.
An
appropriate
would havebut one additional en-

I,
I_

1,
s

step in this direction was the Presidents 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, however, the
impact
of this statement
was diluted by the conference between thePresldentandthe
Governor at Newport, Rhode Island. The
statements Issued by the parties following that conference gave the unfortunate impression t h a t t h e Governbrs use of troops,wasamatter
. fornegotiationandbargaining
between thePresident, sworn touphold the Constitution, and the Governor whose actions had amounted t o
a , flouting of the same Instrument.
If repetition of theLittle Rocksituation
is
to be
effectively
discouraged,
thePresidentmustmake
clear his
determlnatlon toact
promptly
in
thefutuletopreventinterruption
of orderly desegregation undertaken
in pursuance of judicial
determination,
I
I

THE Presidents once-expressed in-

tention to use everylegalmeans

a t his command, recalls thatthere
IS anadequatearsenal
of Presidential authority. I n t h e unlikelyevent
that i n seme future situation a state
official shouldrefuse
t o withdraw
National
Guard
troops
even
after
a

forcement device, andthat

one of
doubtfulutilityunderthe
circumstances. By law thedistrictcourt
cansummon
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 thistechniquesuggew
that responsibility forenforcement
of the law would then rest squarely
m71th th3 President. He would be un;
der a clear mandate
t o secure
pllancewith the law as declared by
the federal
cou,rts.
By the
same
token,negotiation of accsettlementy
would be dearlyinappropriate.
In
view of the Presidents obligation t o
preserve. protectand
defend the
Constitution,
he
might
fmd
, it
necessary to resort to force of some
kindin
theevent of adamant resistance. Some ,time ago the, Presi-
dentindicated
thathe
could conceive 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, understood as approprlate
an
,reluctance t o resort t o armedforce.
Despite that reluctance, he surely
could nor long abidestate use of
NationalGuardtroops,indefiance
of federalauthoiity.After
all, .the
NatlonalGuardunitsareequipped

corn:

a t the expense of the Federal Government, and, according t o 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 unlawfulobstructions,combinations,
or
assemblages,
or rebellion
against the,authority of the United
States, make it impracticable to enforce the laws of the United States
in any State or Territory by the ordinary course of judicialproceedings,
he may call into Federal service such
of the militia of any State, and use
such of the armedforces, as he considers necessary to enforce these laws
or do suppress therebellion.

Thus, the President could call directlyiptofederal

se&e
National
Guardtroops
beingused
b y state
officials tothwart
enforcement of
federal law. Alternatively, tbeh President , codld dispatch units, of the
regularUnitedStatesArmy
t o any
affectedarea,
withorders
to take
command
and
restore
compliance
with law.
I
Obviously, these are drastic measures which would be unlikely t o
ease the way to desegregation. But
state defiance sf Iawful federalauthoritymaynot
betolerated.This
would n o longer be state sovereignty
but state anarchy.

WITH LIGHTS and

clatter

like a four-billion increase overthe first decentshelter, let alone the vine-
coveredcottage,simply
hasnt come .
those of a pin-ball
machine,
- t h e quarter. Jobs, a t 67.2 million,. $SO
scoreboards of American
prosperity
set a record. T o top it off, personal true. At the peak of Americas wealth
continue to rack up evermore im- incomereached
$324 billions, the and power, one-third of the nation
is no longer ill-fed or ill-clothed,
pressive
totals.
Thelatest bell rung highestpercapitaamounteveratbut i t is still appallillgly
housed.
by the economy is the unprecedented tained in theUnitedStates.
There seems, however, t o be, an , Last May A~.chitectzwaZ Fovzrm
cutput of goods ,and services. Midsound of pointed outthatthere
are just
summel; saw the nations Gross Na- off-beat notetothesteady
tional Pr,oduct reach $433.5 billions the spinning wheel of ,fortune. The about as many unsanitary, congested
discord is struck by the housing situ- anddilapidated
, homes
in
the
MUR&J!Y-B. AKELD, a practicirLg atibn. Somehow, ip the
vast
outUnited
States
as there were in
socinl zuorher in S t a m f o r d , C o m e c t < - pouring of goods, services and per- themlddle of the Depression-probCU!, lfctlt,rCr 011 C ~ l ~ ~ ~ 7 ~ . lC?gd?lt n i t ? ) scrnal income, the housing
promise
, ablywithmore
peopleliving
in
izalio?; Q I t h e Nezu Io& School 01 has notpaid
off. For millions of them. This conclusion is obvious to
Socid Work (Colwmbia Umiverhty). American families, the dream of anyone
who
looks closely at t h e

Sspgeahber 28, 2957

, ,
b-