ABSTRACT Throwing Down the Gavel: How the Federal Courts Intervened in Desegregating South Carolina's Public Schools and Were

ABSTRACT

Throwing Down the Gavel: How the Federal Courts Intervened in Desegregating

South Carolina’s Public Schools and Were Hindered by the State and Local Governments

Madison Hoover

Director: David Bridge, Ph.D.

This thesis examines the jurisprudential and political development of desegregation in South Carolina from the Brown era through the post-Swann era. By analyzing the actions of local school boards, the South Carolina General Assembly, and political leaders within the state and in Congress, this thesis reveals that the S.C. state and local governments’ delay in desegregating its public schools was intentional and racially motivated. Further, this text reveals that these governmental actions both responded to and fueled racially discriminatory beliefs held by some white South Carolinians, and it demonstrates how these citizens’ actions reflect those beliefs. When desegregated schools started becoming a reality for South Carolina in the 1960s, white parents took advantage of private schools’ tax-exempt status and transferred their children to these institutions at alarming rates. Despite most of these schools admitting exclusively white students, the Internal Revenue Service did not revoke tax-exempt status for racially discriminatory private schools until 1970, and this change was not enforced until 1977. During this time, white parents also utilized the Tuition Bills that the South Carolina General Assembly passed in 1962 and 1963, which granted tuition vouchers for any student who wished to attend private school; however, in effect, this allowed for white students to leave the public school system in shocking numbers, as few private schools in the state admitted Black students. Public school desegregation in South Carolina became political from the start, and this thesis examines the actions of U.S. Senator Strom Thurmond, local school boards, and South Carolina governors to demonstrate this underpinning and how it hindered progress toward integrated schools. Finally, this thesis illustrates the current public education system in South Carolina, and it highlights how the problems that lead to the initial suit in Briggs v. Elliott (1948) persist in the state even in 2021.

APPROVED BY DIRECTOR OF HONORS THESIS:

______

Dr. David Bridge, Department of Political Science

APPROVED BY THE HONORS PROGRAM:

______

Dr. Andrew Wisely, Interim Director

DATE: ______

THROWING DOWN THE GAVEL: HOW THE FEDERAL COURTS

INTERVENED IN DESEGREGATING SOUTH CAROLINA’S PUBLIC SCHOOLS

AND WERE HINDERED BY THE STATE AND LOCAL GOVERNMENTS

A Thesis Submitted to the Faculty of

Baylor University

In Partial Fulfillment of the Requirements for the

Honors Program

Madison Hoover

Waco, Texas

May 2021

TABLE OF CONTENTS

List of Figures...... iii

Acknowledgments...... iv

Dedication...... v

Chapter One From Briggs to Brown I...... 1

Chapter Two How Federal Courts Intervened in South Carolina’s Desegregation Plans...... 17

Chapter Three Can Federal Courts Create Social Change?...... 26

Chapter Four How the State and Local Governments Blocked South Carolina from Integrating Public Schools Following Swann and Related Cases...... 45

Conclusion Thesis Summary and Current Consequences for South Carolina...... 71

Bibliography...... 78

LIST OF FIGURES

Figure 1. Revenue (in 1996 USD) for Public Elementary and Secondary Schools, South Carolina: 1969-70 to 1996-97...... 46

Figure 2. Percent of Black Students Enrolled in Public School with White Students, South Carolina: 1954-55 to 1972-73...... 50

Figure 3. Enrollment of Private Schools in Beaufort, South Carolina from 1964-65 to 1971-72...... 62

iii

ACKNOWLEDGMENTS

To my thesis mentor, Dr. David Bridge, thank you for your guidance and active involvement in this thesis. Thank you for encouraging me to become more assertive in class discussions and holding me accountable for this project. Your advice and support helped me more than you may know, as I just started finding my voice and academic interests when I switched majors and took American Constitutional Development as a freshman. Thank you for always fostering an engaging and collaborative classroom environment. Most importantly, thank you for catapulting my writing skills and interest in greater justice for all. I will dearly miss your affinity for Taylor Swift and puka shell necklaces. Thank you for being an integral piece of my Baylor experience.

To my parents, thank you for your unwavering love and support. Thank you for always empathizing with my frustrations and celebrating my accomplishments. When I attended class remotely during the pandemic, thank you for understanding the need for space to focus and bringing me notes of encouragement throughout the day. Thank you for reminding me to take study breaks, invest in friendships, and get out and smell the bluebonnets. When I told you I wanted to completely change my career path during the first week of college, thank you for trusting my capabilities and allowing me to march bravely into a field I had minimal connections to. Thank you for always prioritizing my education as the single greatest investment of our time and energy. For fostering a spirit of inclusivity, patience, and hard work in my life, I cannot thank you enough. I would not be the same woman, let alone student, without your love and dedication.

To my sisters, Makenna and Mariah, thank you for being my built-in best friends. Thank you for the endless FaceTimes, phone calls, and pictures of Canyon. You always seem to call or reach out right when the universe knows I need a break, and I cannot thank you enough for maintaining our close family even when we are a thousand miles apart. Makenna, thank you for your infectious persona that never fails to make me smile. Mariah, thank you for never turning down a coffee run or a Hamilton singing session. To both of you, thank you for all the spunk and support you bring to everyone’s life, including mine.

To educators, thank you for investing your time in the critical formation of the next generations. To my educators, thank you for getting to know me on a personal level and demonstrating interest in me beyond the classroom. To educators in South Carolina, thank you for continuing to work toward a better future by persevering and shaping your students’ lives.

DEDICATION

“It is certain, in any case, that ignorance, allied with power, is the most ferocious enemy justice can have.” -- James Baldwin No Name in the Street

“Do the best you can until you know better. Then when you know better, do better.” -- Maya Angelou

For a South Carolina that recognizes the faults of the past and actively works to improve its public education system for future generations of students.

CHAPTER ONE

From Briggs to Brown I

In 1947, the Pearson family sued the local county school board for a bus to transport their children to school in Levi Pearson v. Clarendon County and School

District No. 26 (1948)1. Harold Boulware, an NAACP attorney from Columbia, South

Carolina filed the suit. This case was ultimately withdrawn due to a technicality, however, as the court found Levi Pearson did not have legal standing since he paid taxes in a district other than the one where his children attended school. After this withdrawal,

Boulware sought the help of Thurgood Marshall, who was the lead counsel for the

NAACP Legal Defense Fund at the time. Marshall initially denied Boulware’s request but agreed to involve himself in the case if a larger group of plaintiffs could be gathered to strengthen the case.

Harry Briggs, along with over twenty additional parents, then filed a petition to the Clarendon County School Board for their children to receive transportation to school.

Importantly, these parents did not ask for their children to receive the same accommodations as the county’s white students. Harry Briggs, and over twenty additional parents, only requested that the Clarendon County School Board provide their students with one bus. Given that the white students utilized thirty-three buses at the time, the parents found their request reasonable; however, R.W. Elliott, the president of the school

1 Information on Levi Pearson v. Clarendon County School District No. 26 (1948) comes from: Dulaney, W. Marvin. “Briggs v. Elliott.” South Carolina Encyclopedia, University of South Carolina, Institute for Southern Studies, 7 Nov. 2016, www.scencyclopedia.org/sce/entries/briggs-v-elliott/. 1 board, did not. Elliott denied the request, stating that the African American families did not contribute enough in taxes to merit spending money on a bus for their children.

After this denial, Thurgood Marshall then represented Harry Briggs and the other

Summerton, South Carolina parents by filing suit in the fall of 1950. While R.W. Elliott was the main defendant due to his role on the school board, Harry Briggs’s name appeared in the cases’ title because his name was first in the alphabetical list of all twenty parents and their combined forty-six school children. This lawsuit, Briggs v. Elliott

(1952), “was the first school funding lawsuit that made it to the court in South Carolina” and later became one of the five cases consolidated into Brown v. Board of Education I

(1954) (Allen 444). Marshall also strengthened the Clarendon County parents’ claims by now arguing not based on discrimination, like the argument in Pearson, but unconstitutionality. This reinvigorated approach was not his own idea, and “during the pre-trial hearing Thurgood Marshall was encouraged by Judge Waites Waring, who was one of the three district judges for the lawsuit, to change the lawsuit to attack separate but equal as unconstitutional” (Allen 444). Marshall took Judge Waring’s advice and now argued that the unequal facilities between the white and Black students of Clarendon

County violated the Equal Protection Clause of the Fourteenth Amendment.

While the defendants admitted that the facilities and educational opportunities were in fact unequal, the U.S. District Court for the Eastern District of South Carolina nonetheless sided with the defendants, ruling that the schools must not be integrated, but equalized. This ruling was partially motivated by the state government’s new equalization program, which then-governor James Byrnes convinced the legislature to enact.

Consistent with his suggestion to Marshall following Pearson v. Clarendon Co. Bd. of

Ed. (1948), Judge Waring objected to school segregation yet again as the sole dissenter in

Briggs v. Elliott (1952), stating: “Segregation in education can never produce equality and that it is an evil that must be eradicated…Segregation is per se inequality” (Waring

1951). Judge Waring’s dissenting opinion in this case informed the ruling in Brown v.

Board of Education I (1954), which occurred just two years after he articulated this disagreement on the U.S. District Court for the Eastern District of South Carolina.

The plaintiffs in Briggs appealed the case to the United States Supreme Court, and the case was consolidated along with the following cases on the Supreme Court’s docket for 1952: Brown v. Board of Education of Topeka, Davis v. Board of Education of Prince

Edward County, Bolling v. Sharpe, and Gebhart v. Ethel. While the facts of these cases differ, they each argued against school segregation not by demonstrating discrimination, but by questioning the constitutionality of this practice. The legal issue that united these cases is that separate but equal schools based on race are unequal and thereby violate the

Equal Protection Clause of the Fourteenth Amendment. Additionally, in all five of these cases, the lower courts ruled in favor of the school boards based on the Plessy v.

Ferguson (1896) holding. Consistent with the separate but equal doctrine, the lower courts justified their rulings by stating that the schools in all five cases either were or were soon to become equal in terms of funding and facilities, so the school boards were not at fault. Informed by Judge Waring’s advice in the lower courts, Thurgood Marshall challenged the constitutionality of the Plessy v. Ferguson (1896) separate but equal doctrine in the appeal that would become Brown v. Board of Education I (1954), the

Supreme Court case comprised of all five of the above cases.

The court requested further background in Brown v. Board of Education I (1954) to determine the historical context surrounding the adoption of the Fourteenth

Amendment in 1868. Of chief concern in this matter was whether the separate but equal doctrine was intended by the drafters of the Fourteenth Amendment. Both Thurgood

Marshall and the Supreme Court itself determined that the sources on this issue were at best inconclusive; however, they did note that common, tax-funded schools had not taken hold yet in the South at the time of the Fourteenth Amendment. Instead, the education of southern, white children was in the hands of private groups. During this research, the court and Marshall found that the separate but equal doctrine did not appear in the court until Plessy v. Ferguson (1896). They also found that the facts of this case did not involve education as a whole but transportation.

While Marshall and the NAACP Legal Defense Fund argued on constitutional grounds in the lower court cases as well as Brown v. Board of Education I (1954), their reasoning in the Supreme Court had a new element: an appeal to the psychological effect of separate schools. They demonstrated through psychological studies that, even if the funding and facilities were equal between the schools, the separation nonetheless generated a feeling of inferiority among the minority group.

In the majority opinion of Brown v. Board of Education I (1954), written by Chief

Justice Warren, the court said that the schools are equalized in this case, so it is not enough to compare tangible factors between them. The court thereby distinguished this case from Sweatt v. Painter (1950), which clearly demonstrated that the separate law school in Texas was unequal to those available to the state’s white law students. Under equalized facilities, the court stated that they must then examine the effect of segregation

on public education. Based on the demonstrated negative psychological impact of segregation on minority students in separate schools, the court held that the separate but equal doctrine is inherently unequal and violates the Equal Protection Clause of the

Fourteenth Amendment. The court thus overruled the Plessy v. Ferguson (1896) holding, determining that the separate but equal doctrine has no place in public education.

Thurgood Marshall and the plaintiffs in all five of the consolidated cases, as well as minority students around the United States, finally won their first decision in what would prove to become a long-fought legal battle to integrate the nation’s public schools.

While Brown v. Board of Education I (1954) ruled that segregated public schools violate the United States Constitution, it also began a string of cases over the next two decades that either contested, delayed, or complicated this ruling. The landmark case also did not immediately create integrated schools. Instead, many of the nation’s schools were still segregated when the Civil Rights Act of 1964 was passed, and school segregation was not eradicated until the late 1960s and early 1970s. Brown v. Board of Education II

(1955) was one of the first cases in the uphill battle to desegregate schools after the initial

Brown ruling. In the 1955 Brown II case, the Supreme Court directed the U.S. District

Courts to fashion and oversee remedies for racially segregated schools. In its decision to leave the remedies up to the District Courts, the Supreme Court cited anti-federalism concerns and the wide variation of school districts in the states affected by the original

Brown ruling. While the Supreme Court prescribed the lower courts with this responsibility, it also explicitly called for a mandated and speedy transition from segregated to integrated schools in the affected states.

The majority in Brown v. Board of Education II (1955) was once again penned by

Chief Justice Warren. Through this opinion, the court implemented measures to hold the lower courts accountable. These measures included requiring the defendants in the Brown

I ruling to make a swift and reasonable start towards full compliance with the ruling; however, the courts could still find that additional time is necessary to carry out the ruling effectively but the defendants had to concretely prove the necessity of such extensions.

Importantly, the court also found that D.C., Kansas, and Delaware had made progress towards eliminating racial discrimination in public schools. South Carolina was slow in implementing measures to combat school segregation from the beginning of the Brown I aftermath, and the court noted in Brown II that “The defendants in the cases coming to us from South Carolina and Virginia are awaiting the decision of this Court concerning relief” (Brown 13). The states were awaiting a ruling in this case for guidance on their integration measures; however, it is important to note that both of these states had not yet made any progress toward integration when the other three others involved in Brown I had already taken action.

The next case in the Brown v. Board of Education I (1954) aftermath is Carson v.

Warlick (1956) from the U.S. Court of Appeals Fourth Circuit. The case involved a petition for a writ of mandamus to compel the District Court to vacate order proceedings for declaratory judgment and injunctive relief against racial discrimination in the admission of minority students to schools in McDowell County, North Carolina. In 1955, the North Carolina legislature passed the Pupil Assignment Act in response to the Brown

I decision. This act transferred responsibility for assigning and enrolling students in the state’s schools from the North Carolina Department of Education to local county and city

boards of education. The plaintiffs in this case filed the petition for a writ of mandamus because they believed that the local officials were still engaging in discriminatory practices, referencing that they dismissed one family’s request to transfer their child “to an all-white school because he was a C student and therefore too academically weak, but disqualified another Black family's petition because their son was an A student and should not have his academic success disrupted” (Campbell). Frustrated with continuing to deal with this apparent discrimination after Brown v. Board of Education I (1954) ruled it unconstitutional, the parents petitioned for a writ of mandamus and brought their concerns before the court.

The Court of Appeals ruled that the Black parents who had jointly filed for admissions of their children to schools could not maintain suit in federal court because they had not exhausted administrative remedies by filing individual applications.

Therefore, Chief Judge Parker denied the petition for a writ of mandamus. He articulated the court’s position that the NC Pupil Assignment Act was not unconstitutional on its face, and it was assumed in the validity of this legislation that the school officials would obey the law and avoid racial discrimination forbidden by the constitution.

Compared to other cases in this chapter, Carson v. Warlick (1956) may appear inconsequential, yet it played a major role in delaying school integration by holding that courts must assume government officials will obey the law until they show otherwise.

The case also placed an additional burden on the minority parents through its ruling that they must first pursue all administrative remedies through individual applications.

However, as the plaintiffs learned in the journey from Pearson (1948) to Briggs (1952) to

Brown I (1954), consolidating the frustrations of a large number of plaintiffs into a single complaint often strengthens that complaint once it reaches the court.

Yet another case resulting from desegregation approaches regulated by individual states is Griffin v. County School Board of Prince Edward County (1964). Before the

Supreme Court ruled on this case in 1964, it went through thirteen years of litigation, which began in 1951 with Davis v. Board of Education of Prince Edward County (1951)

-- one of the five cases consolidated into Brown I. Following the ruling in Brown II, a local District Court ordered that the African American plaintiffs in Prince Edward County must be admitted to public schools on a racially nondiscriminatory basis “with all deliberate speed.”

In 1959, the Prince Edward County Board of Supervisors refused to appropriate funds for the operation of public schools, while a private foundation operated schools for white children only. These children also became eligible for county and state tuition grants for these private schools in 1960. The following year, the District Court enjoined the county from paying tuition grants or giving tax credits while the public schools remained closed and held that the public schools could not get around this decision by remaining closed while the other privately funded schools in the state remained open. The

United States Court of Appeals for the Fourth Circuit then reversed the decision on the grounds that the District Court should have waited on a ruling from the Virginia courts; however, the court also stated in its decision that closing the county’s public schools

“while at the same time giving tuition grants and tax concessions to assist white children in private segregated schools denied petitioners the equal protection of the laws guaranteed by the 14th Amendment” (Griffin).

When Griffin v. County School Board of Prince Edward County (1964) appeared in the Supreme Court after yet another appeal, Justice Black and six other justices pointed to the same unequal treatment that the Fourth Circuit Court of Appeals Court noted, though this court reversed the District Court’s decision. The Supreme Court concluded that the county’s public schools were shut down for one reason only: to ensure that white and African American children in the county would not go to the same schools. In a 7-2 majority decision written by Justice Black, the Supreme Court agreed with the District

Court decision that closing the Prince Edward County public schools while public schools remained open in other parts of the state -- and while tuition grants for private schools were given to the county’s white students -- violated the Equal Protection Clause of the Fourteenth Amendment.

The next case in the aftermath of Brown v. Board of Education I (1954) also centered on a Virginian school board’s approach to desegregating schools through a

“freedom-of-choice” plan. Following the Supreme Court’s overruling of the separate but equal doctrine, the School Board of New Kent County still continued racial segregation in its schools and adopted the freedom-of-choice plan only after a suit 1965 suit for injunctive relief against the segregated schools. The plan allowed students to choose annually between the county’s two schools, and those who did not choose were reassigned to the schools they previously attended. The U.S. District Court for the

Eastern District of Virginia approved the plan and the Court of Appeals for the Fourth

Circuit approved the freedom-of-choice provision as well. During the plan’s three years of operation, however, not a single white student chose to attend an all African-American

school and eighty-five percent of African-American students in the county school system remained in the all African-American school.

On appeal to the Supreme Court after the Fourth Circuit of U.S. Court of Appeals approved New Kent County’s freedom-of-choice plan, the court held in a unanimous decision in Green v. School Board of New Kent County (1968) that the plan was not a proper and effectual end to desegregating a dual public school system. Yet again, the court also noted a pronounced delay in the school board’s efforts to desegregate. In the unanimous decision written by Justice Brennan, the court highlighted that the New Kent

County School Board did not make any attempts to integrate until ten years after Brown I was decided, and the court also stated: “a plan that at this late date fails to provide meaningful assurance of prompt and effective disestablishment of a dual system is also intolerable” (Green). Importantly, the Supreme Court did not rule that freedom-of-choice plans are unconstitutional in themselves. The justices only ruled that this approach is not a proper and effectual end to desegregating a dual public education system.

The New Kent County School Board was not the only one that delayed integrating public schools after the Brown I opinion. Until May of 1964, all of the schools in Montgomery and the rest of Alabama operated as if the decisions in Brown I and

Brown II never happened. However, in July of 1964, District Court Judge Johnson handed down an opinion that ordered the integration of certain schools beginning in

September of that year. Some progress resulted from this order, but it was minimal. The school board placed only eight of the twenty-nine African American students who had sought transfers in the city’s white schools. Four years later, District Court Judge Johnson issued yet another order, but this one included five provisions. The first is that the order

provided for safeguards to ensure that the construction of new schools would not follow a pattern that would perpetuate segregation. The order also provided for the adoption of nondiscriminatory bus routes. Thirdly, it implemented measures to hold the school board accountable by requiring the board to file specific reports detailing the steps it would take to comply with this 1968 order. Judge Johnson’s order also provided that the school board must move toward a ratio of white-to-Black faculty members that is equal in every school. Lastly, the order detailed steps to eliminate the impression that the two new elementary schools and the new Jefferson Davis High School were intended for white students’ use. The Montgomery School Board challenged this last provision, and a panel of the Court of Appeals sided with the school board because the judges saw the provision as requiring “fixed mathematical ratios.” The Court of Appeals modified this provision of

Judge Johnson’s order to require the ratios to be changed only substantially or approximately.

When the case reached the United States Supreme Court as U.S. v. Montgomery

Board of Education (1969), the court held that it is best to leave District Court Judge

Johnson’s order as written rather than as modified by the Court of Appeals. In the majority opinion by Justice Black, the court reasoned that the provision under Judge

Johnson’s initial order allows for the process of desegregation to be expedited. While the court found that the order by the District Court was a practical and effective remedy for past racial harm, it did not argue that such ratios are constitutionally or legally required.

Freedom-of-choices plans met the legal system in other states as well. More than ten years after the Brown I decision, public schools in Holmes, Mississippi were still heavily segregated. Many Mississippi public schools adopted freedom-of-choice plans to

comply with the Brown I holding. In 1969, the District Court for the Southern District of

Mississippi entered an order that allowed these schools to continue freedom-of-choice plans. The petitioners then appealed to the Court of Appeals for the Fifth Circuit, where they received a more favorable decision. Issuing a per curiam decision, that court reversed the lower court’s decision and required the Holmes, Mississippi school districts to submit new plans by August of 1969. The school districts then appealed, and the case came before the Supreme Court as Alexander v. Holmes Board of Education (1969) later that year.

The Supreme Court responded to the Court of Appeals per curiam decision with its own per curiam ruling. The legal question before the court was whether or not the

Supreme Court should allow for any further delay in the complete desegregation of the nation’s schools. Fifteen years after it overturned the separate but equal doctrine in

Brown I, the court held that it is no longer permissible to continue the operation of segregated schools under the standard of “all deliberate speed” that the court gave to the states in Brown II. The court also ruled that the Court of Appeals may direct the school districts in this case to accept part or all of the August 1969 recommendations for desegregation from the U.S. Department of Health, Education, and Welfare.

More than two decades after the journey to school desegregation began with

Pearson and then Briggs in Clarendon County, South Carolina -- and fifteen years after the Brown I opinion -- segregation still persisted in a city just one-hundred-and-forty miles away: Charlotte, North Carolina. In 1969, the public schools in Charlotte-

Mecklenburg had around fourteen-thousand Black students attending schools that were either completely Black or 99% Black (Swann). Unlike some of the other school

desegregation cases in the 1950s and 1960s, this continued segregation was not the result of action from the school board or state government, but the result of a desegregation plan issued by a District Court in 1965. Based on the holding from Green v. School

Board of New Kent County (1968) that mandated school boards to design realistic plans that work, and that work now, petitioner Swann moved for further relief.

In 1969, the District Court followed Swann’s action by ordering the school board to submit a plan for desegregating faculty and students. Upon this submission, the

District Court found the school board’s plan unsatisfactory and appointed an outside expert to submit a revised plan. A year later, in 1970, the expert and the school board presented an acceptable plan for desegregation to the District Court. The Court of

Appeals affirmed the District Court’s order regarding these plans but vacated it regarding elementary schools, stating that it could unreasonably burden the students and the school board. After remanding the case back to the District Court, this lower court acquired two new plans and instructed the school either to adopt a plan or the expert’s plan would remain in effect.

After further appeals, Swann v. Charlotte-Mecklenburg Board of Education

(1971) then came before the Supreme Court. The legal question before the justices was whether or not the federal courts were constitutionally permitted to supervise and manufacture plans to remedy continued school segregation. In a unanimous decision, the court held that once violations of past mandates to desegregate occurred, the District

Courts then had a broad and flexible scope to remedy past wrongs. The court also ruled that these remedial plans are to be judged on their effectiveness, and the use of mathematical ratios are legitimate starting points as solutions and as measurements to

track progress. Additionally, the court stated that exclusively or majority African

American schools require strict scrutiny and the court should require these schools’ authorities to demonstrate that their student compositions do not result from past or present discrimination from school officials. Regarding school zones, the court also held that altering these zones is not beyond the powers of the District Courts. On this point, the court stated that plans that appear facially neutral may not be enough to remedy school segregation, and these plans need to be examined based on their effect. Further, the court ruled that pairing and grouping noncontiguous school zones is a permissible tool towards desegregation.

Finally, the Supreme Court also discussed transportation to public schools in its

Swann v. Charlotte-Mecklenburg (1971) unanimous decision. The court agreed with the

District Court’s finding that assigning children to the schools nearest them would not combat segregation in those schools. Importantly, the court ruled that the District Court acted within its power in requiring bus transportation as a means to desegregate. The court also strengthened this practice by stating that objections to busing might be valid when the travel time becomes so great that it poses substantial health concerns or severely hinders the educational process. While the court did not directly say so, this statement of validity implies that under all other circumstances a remedial busing policy as directed by the District Court in this specific case is legitimate and mandatory for students.

While Swann signified the courts vigorously enforcing compliance with the

Brown I ruling, it also signified a shift in public opinion. Among the American public,

“throughout the 1970s 73-78 percent opposed busing” (Pride 208). Other surveys suggest

that busing as a remedy for school segregation was opposed by upwards of eighty-five percent. In an article titled “Busing is Opposed By 8-to-1 Margin, Gallup Poll Finds” from its April 5, 1970 issue, The New York Times reports that when asked the question

“‘In general, do you favor or oppose the busing of Negro and white children from one school district to another?’” more than “86 percent opposed it and 3 percent voiced no opinion” (“Busing Is Opposed”). Thus, even fifteen days before the Supreme Court issued its ruling in Swann, an overwhelming majority of Americans did not support busing. While eleven percent of respondents supported busing in 1970, in another Gallup

Poll conducted three years later, only five percent of the total participants supported busing (“Gallup Finds”). Despite this lack of support, federal courts nonetheless ordered busing as a method to desegregate public schools in several states following the Swann ruling. These states included California, Indiana, Ohio, and Massachusetts.

Given the vast opposition to busing both before and after the Supreme Court issued its ruling in Swann, and the fact that the courts continued to implement this unpopular practice throughout the country in the early 1970s, it is no surprise that the court soon loosened its opinion on busing. As evidence of this movement, the unanimous ruling in Swann was one of the last desegregation cases in which all nine justices were in agreement. Three years after Swann, the Supreme Court issued a close 5-4 decision in

Milliken v. Bradley (1974), holding that the remedy ordered by the District Court to bus students across district lines was “wholly impermissible” and unjustified by the Brown I decision because there were no signs of desegregation violations by school districts involved in this measure. Additionally, in its ruling that the District Court’s order was unfounded, the court also cited a lack of evidence that this cross-district action would

have a positive effect. The most significant aspect of this case, however, is that the court ruled that school districts are obligated to implement busing in their desegregation plans only if there is demonstrated evidence that the government officials created those district lines with racist intent.

While African American students and families finally gained a favorable ruling from the Supreme Court that overturned the Plessy v. Ferguson (1896) separate but equal doctrine in 1954, desegregation efforts remained disorganized and locally controlled into the 1970s. As a consequence of Milliken v. Bradley (1974), the Supreme Court and other federal courts also began to issue weakened decisions regarding methods to integrate public schools in that they could only order schools to implement busing when there was evidence of school or government officials purposely enacting zoning policies that perpetuate segregation. As discussed in the next chapter by examining federally ordered desegregation in South Carolina, it still sometimes took interference by the courts for schools to fully pursue desegregation in public schools.

CHAPTER TWO

How Federal Courts Intervened in South Carolina’s Desegregation Plans

Lower district and circuit courts strengthened their commitment to desegregation after Swann (1971), and these federal courts demonstrated their commitment through a series of cases in which they intervened at the state level. South Carolina was no exception. Even before the Supreme Court ruled in Swann v. Charlotte-Mecklenburg

(1971) that the local school board acted properly in implementing busing as a remedy to school segregation, the Greenville County, South Carolina school district had its own battle with the federal courts over its desegregation plan in Whittenberg v. Greenville

County School District (1969). Whittenberg was succeeded by a series of cases in which federal courts interceded in desegregation plans in South Carolina after Swann. These cases include Adams v. School District Number 5, Orangeburg, S.C. (1971), United

States v. Chesterfield County School District (1973), and United States v. Saluda County

School District (1973). While Bradley v. School Board of the City of Richmond (1972) is a case that originated in Virginia, it nonetheless adds to the discussion in this chapter by illustrating that the federal courts still limited their commitment to desegregation efforts when these efforts contradicted federalism or the limitations established in Swann (1971).

In 1969, the United States District Court for the District of South Carolina consolidated twenty-two lower court cases in which plaintiffs sought desegregation in each of their respective school districts into Whittenberg v. Greenville County School

District (1969). The lower courts ordered decrees requiring desegregation in thirteen of

these districts. The other nine cases had not yet resulted in a decree. Pursuant to the

Supreme Court’s decision in Green v. School Board of New Kent County (1968), the

District Court then ordered that the nine school districts represented in these cases must submit changes to their desegregation plans or create one if none existed. The school districts submitted updated plans, and the plaintiffs in the original actions objected to these modifications by arguing that these updated plans did not meet the constitutional standards set forth in Green (1968).

The District Court for the District of South Carolina then took the power to modify desegregation plans from the school districts and into its gavels. In the written order, the court argued that its intervention in these plans was necessary for the constitutional standards established in Green (1968) to be met. The court noted the complexities of implementing desegregation plans in South Carolina, as each district had different facilities and racial compositions. Further, the court stated that most South

Carolina school districts operated under strict guidance from the Department of Health,

Education, and Welfare (HEW) at the time of this case.

The court also detailed the jurisdiction the Department of HEW had over desegregation by referencing Title VI of the Civil Rights Act of 1964, which gave the department the responsibility to oversee desegregation in United States public schools and to terminate federal aid to schools in noncompliance. After establishing this department’s legal jurisdiction in the written order for Whittenberg v. Greenville County

School Board (1969), the District Court ordered that each of the school districts represented in this case must work with the Department of HEW to modify their desegregation plans within 30 days of this order. The District Court also limited the

opportunity for the local school districts to resist this order by giving them only ten days after a revised HEW plan to demonstrate that the plan is unconstitutional, and it also seconded HEW’s right to cease federal aid to these districts if they did not cooperate. The

District Court’s order in this case is significant because it demonstrates that even before the Swann (1971) ruling which upheld that busing as a proper means for school desegregation in Charlotte, North Carolina, federal courts intervened to curb segregation in South Carolina’s public schools.

In Adams v. School District Number 5, Orangeburg, S.C. (1971), the Fourth

Circuit United States Court of Appeals specifically relied on the Supreme Court’s rulings in Swann (1971) and Davis v. Board of School Commissioners of Mobile County (1971) to establish that school authorities and district judges should pursue every effort to achieve desegregation of public schools. The Fourth Circuit Court of Appeals remanded the set of cases in this action back to the lower courts because they did not have the guidance of Swann (1971) and Davis (1971) at the time of the original hearings. The

Court of Appeals for the Fourth Circuit noted that the Swann (1971) ruling was especially significant because it held that consideration should be given to busing as a means to achieve desegregation, especially in districts with schools that would be composed of almost exclusively one race without busing.

Yet again, the federal court gave the school districts in these remanded cases a strict schedule to submit new plans that complied with the 1971 Swann and Davis rulings.

To justify this time constraint on the school districts, the Fourth Circuit Court of Appeals referenced Alexander v. Holmes County Board of Education (1969) holding that the window for “all deliberate speed” has expired. The circuit court ordered that these school

districts must submit new plans in less than a month, and each district judge must hold a hearing to determine the efficacy of these plans by July 16, 1971. This placed the deadline one month and a week after the order was issued in this case, which put additional pressure on the school districts to quickly submit new plans. The Fourth

Circuit Court of Appeals also bestowed each of these district judges with the ability to appoint an educational expert to create a plan for the respective school district to introduce in September 1971. Further, the Fourth Circuit Court of Appeals ordered that if the judge appoints an educational expert, that school district will compensate that individual at its own expense. This case is significant not only because the federal courts intervened in desegregation plans for public schools at the state level, but also because these courts implemented strong measures to ensure that the school board would either voluntarily make necessary revisions or involuntarily receive them from a district judge or an educational expert.

United States v. Chesterfield County School District (1973) is yet another case from the Fourth Circuit Court of Appeals that dealt with desegregation of public schools in South Carolina. The case involved the firing of ten Black teachers throughout a court- ordered desegregation plan. The United States sought reinstatement of these teachers, with back pay, and alleged that these terminations of employment were racially discriminatory. The district court denied this relief and ruled that the teachers were let go to improve faculty, noting that all but one of these teachers received a “C” certificate from the South Carolina Board of Education based on their scores on the National

Teachers’ Examination (NTE).

The Fourth Circuit for the Court of Appeals ruled in United States v. Chesterfield

County School District (1973) that the elimination of nine of these Black teachers was racially discriminatory for two primary reasons. First, the court noted that not a single white teacher’s employment was terminated due to the supposed legitimate state interest of improving public education. Second, the court demonstrated that the standard that

South Carolina public schools used to measure a teacher’s performance was flawed for two reasons: the standard disadvantaged veteran teachers, and a representative of the department that administers the NTE testified that the exam could not significantly reflect a teacher’s abilities in the classroom.

The Court of Appeals Fourth Circuit stated that, for over thirty years, the South

Carolina Board of Education altered the numerical qualifications for each of the three certificate categories. Thus, when the court compared the NTE scores of the teachers that the school terminated and rehired, it discovered that all but one of the ten fired teachers had scores higher than many teachers that the school rehired. Referencing the Supreme

Court ruling in Burton v. Wilmington Park Authority (1961), the court also stated that the discriminatory effect of a state action cannot be ignored even when there is no demonstrated discriminatory purpose for that action. The court thus ruled that nine of the fired teachers must be reinstated because of the clear evidence that teachers with equal qualifications -- their raw NTE scores -- were treated differently in effect, whether that discrimination was intentional or not. Overall, United States v. Chesterfield County

(1973) is a noteworthy desegregation case because the federal courts yet again intervened with desegregation plans at the state level, and this time the federal courts expanded their

concern for discrimination and desegregation in public schools from students to teachers as well.

The next case centered on the complex journey to public school desegregation in

Saluda County, South Carolina. The initial suit in this case, United States v. Saluda

County School District (1973), was filed by the United States in 1969 under Title VI of the Civil Rights Act of 1964 and requested that the Saluda County school district provide equal opportunities to all students of the county regardless of their race. After this filing, the district court ordered the Department of HEW to implement a plan for the school district beginning in the 1970-1971 school year. The district had three schools operating at the time, and the plan from the Department of HEW was to close the Hollywood school and to integrate students from the predominately white Saluda school and the all-

Black Riverside school and vice versa. However, parents of the students in the

Hollywood school filed a motion to keep the school open and the district court modified its previous order to allow this school to continue its operations.

Officials from the local, state, and federal government began to question the future of the Hollywood school due to its financial and educational struggles. Several of these officials even recommended the school’s closure. Despite these recommendations, the 1972 South Carolina Legislative Session passed Act 1244, which provided for the creation of a separate Hollywood school district in Saluda County which would be governed by its own board of trustees. The district court soon thereafter entered an order stating that the Hollywood school district was defined as a separate school district under state law and transferred the Hollywood residents on the Saluda School Board to the

Hollywood Board of Trustees. The federal government then filed a motion with the

district court seeking a stay because it was not notified of the Hollywood school’s intent to submit this entry. The district court conducted a hearing, but it ordered the South

Carolina Superintendent of Education to authorize state and federal funds for the

Hollywood School District. According to the Fourth Circuit for the Court of Appeals, the district court authorized the establishment of a new school district. The circuit court also ruled that the creation of a new school district to preserve the racial composition of the majority white Hollywood area violates the holdings of countless cases that called for swift removal of dual public-school systems. The Fourth Circuit for the Court of Appeals thus vacated the district court’s ruling and remanded the case back to the district judge with strict instructions to return authority to the Board of Trustees of Saluda School

District over all schools in Saluda County. Once again, the federal courts enforced compliance with the mandate to quickly desegregate public schools across the nation and particularly in South Carolina. In United States v. Saluda County School District (1973) and the other cases about school desegregation in South Carolina that followed

Whittenberg (1969), the schools in question had not achieved desegregation after more than a decade since the Supreme Court declared the unconstitutionality of dual school systems in Brown I (1954).

The Fourth Circuit Court of Appeals ruled in favor of strong measures to achieve public school desegregation in the series of cases detailed so far in this chapter, but

Bradley v. School Board of the City of Richmond (1972) deviates from this pattern. The court recognized that the Richmond, Virginia school board pursued every action it could to remove the dual public-school system that previously existed in the area. The issue before the Fourth Circuit Court of Appeals in this case was whether the district court

could combine Richmond’s unitary school system with two other unitary school districts to maximize integration in these schools. In his written argument for the Fourth Circuit

Court of Appeals, Judge Craven stated that the district judge who joined these three school districts together did not properly consider federalism as presented in the Tenth

Amendment or the limitations of the lower courts’ ability to provide remedies for school segregation as presented in Swann (1971). On this basis, the Fourth Circuit Court of

Appeals reversed the district court decision that a district judge could combine school districts to maximize desegregation efforts. This Court of Appeals ruling is important because, under the context of this chapter, it demonstrates that the federal courts strengthened their commitment to desegregation after Swann (1971) -- but not without limits.

While not every federal case in this chapter fully supported the desegregation efforts considered in the lower courts, they all demonstrate that federal courts intervened in the desegregation plans of local school boards to some degree. The case facts of several of these decisions also show the lengths that local governments and private citizens went to in order to maintain the racial composition of their communities that existed before the integration of public schools. United States v. Saluda County School

District (1973) reflects this resistance through the efforts of Hollywood parents to create an entirely new school district to sidestep the desegregation plan that the Department of

Health, Education, and Welfare gave to the schools of the Saluda County school district.

United States v. Chesterfield County School District (1973) shows how this resistance can manifest in discriminatory effects, whether or not the school districts and other relevant actors intend those effects. Both Whittenberg v. Greenville County School Board

(1969) and Adams v. School District Number 5, Orangeburg, S.C. (1971) illustrate opposition to public school desegregation through weak or nonexistent desegregation plans of local school districts. Overall, the cases in this chapter reveal that federal courts fortified their commitment to the desegregation of public schools, and parents and school districts alike pushed back against this pressure in many ways.

CHAPTER THREE

Can Federal Courts Create Social Change?

As observed with the fallout from Brown v. Board of Education (1954) and the subsequent and sustained litigation, court orders do not guarantee immediate relief. Thus, the litigation in federal court from 1969 to 1973 regarding school desegregation in South

Carolina public schools does not ensure that desegregation actually occurred. These federal cases were discussed in chapter two and include Whittenberg v. Greenville

County School District (1969), Adams v. School District Number Five, Orangeburg S.C.

(1971), United States v. Chesterfield County School District (1973), and United States v.

Saluda County School District (1973). Did these federal court cases concerning desegregation in South Carolina actually lead to significant desegregation in the state’s public schools? Answering this question involves first considering a longstanding debate in the scholarly legal community: whether courts, independent of the other branches, have the capacity to create social change.

According to the constrained court view, courts as institutions are too restricted in their power to create significant social change without influence from the legislative and executive branches. This perspective argues that courts cannot achieve change ‘due to three institutional constraints: (I) the binding limitations of legal precedents and rights traditions; (II) the lack of judicial independence from other government branches and public opinion; and (III) the judiciary’s restricted institutional capacity for developing and implementing social policies” (McCann 717). Constraint II demonstrates that the

complex relationships between the institutions of the federal government limit court power, and constraints I and III show that the difficulties within court systems themselves restrict their efficacy.

One constraint within court systems is the need for specialized knowledge and compromises in complex legal issues, including civil rights violations. Individuals who prescribe to this view argue that “specialization, expertise, and political connections are lacking in courts and are crucial for implementation of significant social reform. Given the political and social opposition to civil rights, and the complexity of the issue, the need for such knowledge and skills was high” (Rosenberg 86). Focused knowledge and experience would thus assist courts in implementing significant social change in general, but especially amid highly politicized legal issues such as civil rights violations and hostile public attitudes toward the need for desegregation in the 1950s and 1960s. Since courts generally lack this specification, “judges may not be aware of, or be able to deal with, the political trade-offs necessary to implement any public policy” (Rosenberg 86).

Even if courts are aware of these necessary compromises and could secure them, they might choose not to pursue such compromises out of fear that it would make the court’s decisions appear weak and encourage others to avoid the full weight of the relevant ruling. This is not the case with court-ordered desegregation, however, as evidence suggests that courts did not recognize that political and communal compromises were necessary. Of particular note is that “the U.S. Commission on Civil Rights found that community preparation and participation in planning, key elements to successful school desegregation, were utterly lacking in court-ordered desegregation plans” (para. in

Rosenberg 86). These omissions and lack of compromises likely contributed, at least in

some regard, to the delay in enforcing the Brown v. Board of Education (1954) overturning of the “separate but equal doctrine” of Plessy v. Ferguson (1896) with “all deliberate speed.”

Another constraint within courts themselves is the time sensitive nature of many legal situations. In complex legal matters, “the time between the initiation of a suit, the exhaustion of appeals, and the issuance of a final decree can be years. This is no less when judges act in good faith. Delay is built into the judicial system and it serves to limit the effectiveness of courts” (Rosenberg 87). This constraint factored significantly into

Briggs v. Elliott (1952), which was one of a number of cases consolidated into Brown v.

Board of Education, heard before the Supreme Court in 1954, and being litigated into

1963 in the ongoing cases concerning school desegregation plans pursuant to Brown I and Brown II. There is also evidence which suggests that this delay was an intentional effort to maintain segregated schools. As an attorney “arguing for South Carolina in

Brown II, S. E. Rogers asked for district court control, admitting in response to questions that this would result in no desegregation, ‘perhaps not until 2015 or 2045’” (qtd. in

Rosenberg 89). This demonstrates that, at the very least, the state not only understood that giving the lower courts control would delay implementing desegregation, which the

Supreme Court had already ruled as unconstitutional, but it also knowingly advocated for these courts to have jurisdiction over these matters. Yet “another attorney, out of court, commented that ‘local judges know the local situation and it may be 100 years before....

[civil rights are] feasible’” (qtd. in Rosenberg 89). Based on this evidence, there is no question that delay is a noteworthy method to keep courts from creating social change, whether intentional or not. The delay that characterized Briggs’s journey through the

court system serves both as a representation of the constraints within courts to implement desegregation in the nation overall and as a reminder of the hostile resistance to desegregation that existed in South Carolina for several decades.

Yet another hindrance to federal courts’ capacity to further social change is the cost of litigation. Requesting files in discovery, hiring expert witnesses, and practicing a trial can quickly run up costs for a case, especially in complex areas such as civil rights violations. Delays in the justice system only exacerbate these costs, as attorneys must continue researching the case and developing their arguments for great lengths of time.

Given that these delays were common in desegregation cases, it is unfortunately no surprise that “it is estimated that Brown cost ‘well over $200,000’ and Supreme Court cases testing Brown averaged between $15,000 and $18,000” (para. in Rosenberg 93).

Adjusted for inflation, that means that Brown’s expense was nearly two million dollars in today’s money, and the average cost of the cases following Brown was between $175,000 and about $195,000 at today’s rate (Friedman). It is important to remember that the plaintiffs in desegregation cases often suffered from decades of unequal educational opportunities and a low-quality education, which could impact their occupational opportunities later in life as well. This makes the already high costs of litigation an even greater obstacle to implementing desegregation through court action, as most of these legal challenges were not funded by individual contributions but by communal donations to private organizations and the NAACP Legal Defense Fund.

The final obstacle to courts’ ability to create significant change, within the courts themselves, is narrow interpretation of the law. This tool allows judges, and in some cases, even Supreme Court justices, to shrink the scope of the courts’ ruling and its

application in the practical world. Briggs v. Elliott (1952) suffered from this restriction as well as significant time delays. In this case, “the federal district court held: ‘The

Constitution, in other words, does not require integration. It merely forbids discrimination’” (qtd. in Rosenberg 89). It is important to mention that this narrow interpretation occurred in 1955, when Briggs was remanded to the lower courts to decide the most effective approach to desegregation in their region after the Brown I ruling. This means that despite a clear and unanimous decision from the Supreme Court that segregation in public schools directly violated the Equal Protection Clause of the

Fourteenth Amendment, the lower federal courts in South Carolina, specifically the

District Court for the Eastern District of the state, still resisted desegregating with the “all deliberate speed” specified in Brown I. Further, these lower federal courts hid their resistance to desegregation in public schools under conspicuous methods, and time delays and narrow interpretation of the law were two of these methods. The practical result of the narrow interpretation of Brown I, when Briggs was remanded to the district courts,

“was to allow segregation to continue as long as defendants could allege that they were not discriminating, that segregation resulted from the ‘free choice’ of all concerned”

(Rosenberg 89). This practice was later overturned in Whittenberg v. Greenville County

School District (1969), in which the District Court for the Eastern District of South

Carolina ruled that direct involvement in school desegregation plans was necessary to fulfill the requirements of Brown I and Green. This case also opened up other desegregation plans in South Carolina for litigation and led to the other cases discussed in chapter two: Adams v. School District Number Five, Orangeburg S.C. (1971), United

States v. Chesterfield County School District (1973), and United States v. Saluda County

School District (1973). While the narrow interpretation in the 1955 Briggs decision was eventually overturned, it took fourteen years for that to transpire, and in the meantime hundreds of thousands of students, if not millions, in the states’ public schools suffered from unequal educational opportunities due to racial discrimination.

Supporters of the constrained court view contend that the constraints of specialization, time, money, and narrow interpretation within courts can reduce their power, but they generally emphasize the limitations due to the interconnectivity of the federal and state governments’ branches as well. The executive and legislative branches can decrease the court’s ability to create social change not only with inactivity, but also with activity that directly questions the court’s legitimacy or decisions. The constrained court perspective posits that “the judiciary requires elite support, and that strong congressional or executive opposition to court decisions, statutory or constitutional, can result in attacks on the courts which limit what they can accomplish.” (Rosenberg 73).

The executive and legislative branches of both the federal and state governments can thus actively or passively curb court decisions in a number of ways, but ones most relevant to attacking the strength of desegregation rulings came from the Justice Department and the

Southern states through the “Southern Manifesto” and a number of laws passed in

Southern states that preserved segregation.

The Justice Department hindered the court’s ability to actually implement school desegregation by enacting policy that limited the court’s jurisdiction and by failing to prosecute school districts for not desegregating or having no desegregation plans. One of the most significant policies passed by the Justice Department to limit court efficacy occurred “in the summer of 1957, [when] a bill drafted by the Justice Department

limiting the Court’s opinion on Jencks v. US (1957) was enacted and a bill removing

Supreme Court jurisdiction in five areas dealing with subversion was introduced”

(Rosenberg 74). The fact that the Justice Department limited the Jencks v. US (1957) opinion while almost simultaneously rolling back the Supreme Court’s jurisdiction in certain areas suggests that the department may have felt that the Court was becoming too powerful and in need of further checks and balances. In addition to forceful checks and balances, the Justice Department largely failed to support the Supreme Court and enforce the provisions of Brown I. In fact, “in a major study of when and why school districts desegregated, the U.S. Commission on Civil Rights found that of 160 school districts that experienced their greatest reduction in segregation before 1968, only 20 were put under court pressure” (para. in Rosenberg 92). Thus, it appears that constraints by other aspects of the federal judiciary were at least a partial factor in the court’s inability to quickly and effectively achieve desegregation in public schools.

Another example of obstacles due to opposition by other aspects of government include the Southern states’ response to the mandate for desegregation in Brown I. This response was a forceful and deliberate attack on the Supreme Court through the

“Southern Manifesto” and a number of states’ laws passed in this region which directly perpetuated segregation or delayed desegregation. The Southern Manifesto happened “in

March 1956, [when] Southern members of Congress...signed a document entitled

‘Declaration of Constitutional Principles,’ and its 101 signers attacked the Brown decision as an exercise of ‘naked power’ with ‘no legal basis’” (qtd. in Rosenberg 78).

The Southern representatives within the federal legislative branch thus directly

questioned the authority of the Supreme Court and signaled to their constituents and states that they would fight for segregation to continue.

At the same time that Southern members of Congress resisted integration at the federal level, Southern state governments and school districts continued to operate as if school segregation was not unconstitutional, or they found ways around the court-ordered mandate to desegregate through other court curbing mechanisms such as narrow interpretation. This messaging was only exacerbated by the numerous laws that Southern states passed following the Brown I ruling that continued segregation or delayed integration. Such laws were so plentiful that “by 1957, only three years after Brown, at least 136 new laws and state constitutional amendments designed to preserve segregation had been enacted” (para. in Rosenberg 79). Laws designed at keeping desegregation from taking place in the South were pervasive not just in their number, but also in the numerous categories they applied to. For example, “every Southern state except North

Carolina adopted anti-NAACP laws [although] some states merely went after members, forbidding them to hold state or local government jobs (South Carolina)” (para. in

Rosenberg 79). This large-scale opposition to integration efforts was further exhibited in

Southern states passing bills to limit such efforts in fourteen separate legislative categories, which are listed in appendix four of Gerald Rosenberg’s The Hollow Hope

(438). South Carolina enacted legislation in twelve of these fourteen categories. The actions of Southern states, and the Justice Department, thus appear to support the proposition of the constrained court view that other branches of the federal and state government can markedly impede the ability of courts to implement social change generally and to desegregate public schools specifically.

On the other side of the scholarly debate in the legal community is the dynamic court view, which posits that courts are capable of achieving social change by their actions alone. Scholars generally discuss this position as one that “has greater support in both the U.S. academy and larger culture” (McCann 717). The evidence supporting this position is not nearly as intricate in the decade that followed the Brown I decision; however, that does not mean that scholars or the general public should easily discredit the dynamic court perspective as a whole. It is important to remember that the differences between the constrained and dynamic court perspectives may impact the evidence available to both sides of the debate. Since the constrained court view focuses on the limitations within the courts and other branches of government, the actions of two additional branches of the federal and state governments are relevant to the discussion, whereas the dynamic court model emphasizes the actions of the judicial branch alone.

Supporters of the dynamic court view argue that the institutional features of courts themselves equip them to issue forceful opinions that move the needle toward social change. These proponents “emphasize in particular how the relative insularity of appointed judges, the accumulated moral authority of courts, and the proven problem- solving capacities of courts render them uniquely situated to undertake reform action where other institutions fail” (McCann 717). Each of these strengths under the dynamic court model have a corresponding weakness in the constrained court model, including that other branches can erode the court’s authority and that biased judges can impede social change because there is no electoral process to hold them accountable. Despite these differences, the constrained and dynamic court arguments imply that institutions, and their structures, matter. Both positions also assume that government institutions have

the capacity to affect the implementation of social change to some degree, whether positively or negatively.

A middle position between the constrained and dynamic court models has emerged in recent legal scholarship. This position is known as the dispute-centered or decentered perspective. Like the other two models, it recognizes the significance of government institutions and their structures, but it also focuses on the role of cultural values, civic engagement, and interest groups. Most studies adhering to this perspective

“begin with, and place primary emphasis on, nonjudicial (both elite and ordinary citizen) actors locked into ongoing but typically conflictual social relations” (McCann 731).

Thus, under this perspective, social organizations functionally become another institution in the debate about which entities carry the greatest weight in creating social change.

Since this view emphasizes social issues and organizations above other entities, “social struggles themselves thus define the center of analysis, and nonjudicial actors are viewed as practical legal agents rather than as simply reactors to judicial command” (McCann

731). Outside institutions, therefore, conceptually figure into the legal process in this view not by challenging or supporting legal decisions, but by engaging in an evolving understanding of cultural values and norms and their reflections in law. Under this framework, the actions and decisions of all relevant entities and agencies would affect the creation of social change that resulted in the desegregation of public schools in the late

1960s and early 1970s. This would include actions by each of the branches of federal and state governments, along with organized entities such as the NAACP and the actions of private citizens such as Levi Pearson, the initial plaintiff in Levi Pearson v. Clarendon

County and School District No. 26 (1948) -- the suit that preceded Briggs v. Elliott (1952) and, later, Brown v. Board of Education (1954).

The dispute-centered, or decentered, model therefore maintains that court decisions are consequential to continuing the movement toward achieving social change, but such decisions are not a metaphorical stopping point that guarantees social change in the future. Similarly, it does not assume that interaction from outside entities in the years that follow a court decision necessarily limit that decision’s capacity to realize significant change. Instead, as the dispute-centered view and “social movement theorists put it, court actions play an important, if limited and partial, role in fashioning the different

‘opportunity structures’ and discursive frameworks within which citizens act” (McCann

732-733). This complex understanding generally demonstrates the trajectory of desegregation through the court system, as Briggs led to Brown I, and Brown I eventually led to further challenges and litigation based on the previous decisions. Under the decentered perspective, this sequence, and the responses to it from an array of entities, reflects “what many analysts refer to as the constitutive capacity of law: Legal knowledge prefigures in part the symbolic terms of material relations and becomes a potential resource in ongoing struggles to refigure those relations” (McCann 733). There is also evidence that this idea has recently begun to gain popularity among attorneys. A growing amount of “lawyers are beginning to realize that winning a case is only the first step, and often the easiest, in effecting change” (para. in Rosenberg 82). Overall, the decentered model is a middle ground between the dynamic and constrained court view because it supports the dynamic argument by maintaining the significance of court decisions, but

also validates aspects of the constrained perspective by positing that outside entities can affect the degree and form of social change in the future.

If the dynamic or decentered model is correct, or if courts can overcome their limitations under the constrained model, then court manufactured -- or at least supported -

- social change is possible. In order to determine whether courts achieved social change with desegregation, it is necessary to briefly summarize the debate surrounding the best ways to measure progress towards it in public schools. Like the proceeding debate, the one surrounding desegregation measurements is both intricate and important.

The debate about desegregation measurements is important because the chosen measurements can impact the resulting data. According to Jill Barshay of the Education

Writers Association, “views on whether segregation is rising or dropping in America depend on how it is measured [and] academics sometimes refer to this as the ‘evenness’ versus ‘isolation’ debate.” Most scholars prefer the evenness measure, sometimes referred to as the dissimilarity index. This quantifies the degree of segregation by comparing the demographics of a surrounding area to the demographics within a school or school district. The measure gives important context to school demographics because a school “becoming less white doesn’t mean schools are becoming more segregated. They are still ‘evenly’ reflecting the racial diversity of the residential population” (Barshay).

This measure is useful for giving comparative context, but it can also lead to inaccurate results. The evenness measure can paint a misleading picture of desegregation figures because “it only considers the demographics of each school district and the schools within it” (Barshay). Thus, it does not consider the possibility of students moving to a more segregated school in a different district. There is evidence that this omission leads

to different conclusions about segregation in public schools, as “nationally, researchers have found increased racial segregation across district lines, as people of different races move into different catchment areas. In other words, segregation is going down somewhat within district boundaries, but going up across school boundaries” (Barshay).

Thus, the chosen units of comparison within the same measurement -- the evenness approach -- can generate different, and even conflicting, results.

On the other side of the debate are the isolation and exposures indices. Isolation

“examines how much a student of one race attends school with peers of the same race

(e.g., what percentage of Black kids attend a school that is 90 percent or more Black)” and exposure “measures how much a student of one race attends a school with peers of a different race (e.g., how many white kids are in the school of a typical Black student)”

(Barshay). While this may seem the most intuitive way to quantify segregation within schools, it lacks the context of the surrounding area’s racial composition. Another issue with this measurement is that, similar to the dissimilarity index, the data varies significantly depending on the scope of input variables and the unit of comparison. For example, instead of examining the isolation or exposure between strictly Black and white students, “if you ask the question slightly differently -- ‘What percentage of Blacks attend a school that is 90 percent or more minority, including Latinos, Asian Americans and

Native Americans?’ -- then the level of segregation has gone up” (Barshay). Although the level of segregation has gone up with this measurement, the level of desegregation may stay the same if a stable number of white students continue attending the school, despite the total minority population within that school growing. This reflects “that we’re increasingly isolating poor Black and Latino students together” (Barshay). However, that

is the conclusion from just one approach to the data. Like the dissimilarity index, results from the isolation and exposure measurements depend on the chosen variables and units of analysis, and the conclusions they produce can even contradict each other.

Measurements of school segregation and desegregation thus do not provide a full understanding of demographic composition within schools, can at times lead to conflicting results, and do not account for many causal mechanisms of school segregation that occur outside the school district or county lines. These mechanisms include “white flight” into suburban areas, the emergence of predominantly white private schools, and freedom of choice plans. Chapter four will discuss the mass flight of white students to private schools, and it will detail the impact of this move on the efforts to desegregate the public education system in South Carolina. The white flight theory is that “whites may avoid individuals they perceive to be low-status, whether by moving to all-white or mostly white neighborhoods or enrolling their children in all-white or mostly white schools” (Renzulli and Evans 400). Segregation could thus increase in a given school due to parents choosing to relocate in order to send their student(s) to a school with better funding or educational outcomes. This means that comparing segregation levels within schools or school districts to that of the surrounding area, through the dissimilarity index, is important, but it can lead to false conclusions if significant change occurred in the area’s racial composition and that change is not accounted for in the analysis.

Recognizing the limitations of the available data and the scholarly debate regarding the court’s ability to implement social change, do the segregation measurements and statistics demonstrate that court-ordered desegregation in the late

1960s and early 1970s2 led to actual desegregation in the nation’s public schools? Yes, the data shows large improvements in segregation levels, but many scholars argue that court action may not be the sole cause. Gerald Rosenberg argues that the court certainly furthered desegregation in public schools, but he maintains that the court was only able to achieve this after other government institutions showed support for desegregation, thereby overcoming the limitations under the constrained court model. On the other hand,

Gary Orfield posits that courts accomplished social change by enforcing desegregation, but with the federal government simultaneously enforcing it as well3. Finally, Michael

McCann also believes that the federal government and courts worked together to create social change; however, he differs from the other two scholars in that he views the path to desegregation as part of a larger discussion of cultural values and opportunity structures, and he recognizes how social groups have shaped this discourse. As each of these scholars maintains, the federal courts, at the very least, significantly contributed to improved segregation. Matt Barnum summarizes the findings on the efficacy of court orders for desegregation, stating: “In the most basic sense, they did succeed.” Not only did desegregation actually manifest in the nation’s schools, but desegregation also benefited both white and Black students, though the latter group experienced the greatest benefits. For all students, but especially Black students, “going to integrated schools for an additional five years caused high school graduation rates to jump by nearly 15 percentage points and reduced the likelihood of living in poverty by 11 percentage

2For a more detailed discussion of the cases relevant to South Carolina, see chapter two. Court- enforced desegregation happened across the rest of the nation as well following Swann and Green.

3 See Gary Orfield’s discussion of desegregation data in “Public School Desegregation in the United States, 1968-1980,” published by the Joint Center for Political Studies 40

points” and “these benefits extended to the next generation” as well (Barnum). Thus, social change occurred through the realization of desegregation in the late 1960s and early 1970s and through the improvements in education and employment outcomes that resulted from desegregation.

The improvements in the South as a whole also reinforce the position that federal court enforcement of desegregation increased the actual desegregation levels in public schools. Public schools in Southern states were more intensely segregated before Brown I than those in the Northern states, so these states became the focal point of court ordered and enforced desegregation in the late 1960s and early 1970s. This segregation was so significant that, “not only Black students but whites as well were far more likely to attend substantially integrated schools in the South than in the North” (Orfield 12). The courts were thus able to more effectively enforce desegregation in the South and appeal to its impact on the region’s students as a whole, not just its effect on Black students. Due to this, “the percentage of Black students in the school attended by the typical white student rose faster in the South than in the nation as a whole” (Orfield 12). Noteworthily, the most significant changes across the South occurred between 1968 and 1980. For example,

“In the South, the percentage of white public school students in schools that were 90 to

100 white percent declined from 71 percent in 1968 to 36 percent in 1980. During the same period, there was virtually no change in the Northeast and a much smaller change in the Midwest” (Orfield 12). The increased enforcement of desegregation, and the resulting progress toward that end, is thus largely unique to the South. Given that this enforcement is distinct to the South due to its more intensely segregated past, which permeated the demographics of the region’s public schools both before and after Brown v. Board of

Education (1954), it is no surprise that South Carolina experienced significant desegregation once the local district courts began vigorously enforcing it.

If the district courts contributed to actual desegregation in the late 1960s and early

1970s, what explains the courts’ sudden ability to create significant social change on a national scale after almost a decade of no progress in this realm?4 The most convincing data indicates that the Civil Rights Act of 1964 enabled the courts to enforce desegregation because the act gave the Justice Department the authority to file suits on behalf of students in intensely segregated schools and, under Title VI of the act, granted

HEW the authority to withdraw federal funding from schools that either refused to desegregate or had no desegregation plans in place. Title VI also permitted HEW to offer increased federal funding to state governments for public education, but those funds came with the condition that the benefitted schools would desegregate. In effect, the judicial system now had appropriate sticks and carrots to utilize in the push for desegregation among Southern states, and the other branches of government supported their use. Thus, even if the constrained court view is assumed correct, the limitations on the court eroded

in the later 1960s, [as] federal support for civil rights accelerated, thus overcoming constraints I (with precedents) and II (legislative and executive action.) The remaining implementation constraint (III) was overcome in part by judicial ability to hold up federal funds and the legitimating “cover” that court decisions provided to committed officials (McCann 718)

The most significant piece of legislative support was undoubtedly the Civil Rights Act of

1964, although the Civil Rights Act of 1957 and 1960 constituted incremental progress

4 Chapter four will specifically examine the causes for and against desegregation in South Carolina’s public schools 42

toward the 1964 legislation, which finally granted the federal government and courts the authority to withhold federal funds from schools that failed to desegregate.

The executive branch also began to publicly support desegregation in public schools in the 1960s. While there is debate and criticism about the cogency of his efforts, in a public address, “President Kennedy asked Congress to enact a civil rights bill in

1963,” at a time when “98 percent of Black students in the South were in all-Black schools, and almost all whites attended white schools” (Orfield 5). During the same year,

President Kennedy also issued an executive order which authorized National Guard troops to respond to segregationists preventing the first Black students at the University of Alabama from registering at the institution. Some critics question Kennedy’s lack of response in other similar circumstances, but his response in this situation -- and his requests to Congress for civil rights legislation -- at least signaled government recognition of the Supreme Court’s authority in Brown v. Board of Education (1954).

Aside from court enforcement, the single most crucial reason desegregation finally occurred in the South was that schools’ segregation levels could directly harm or help their funding as of 1964. According to proponents of the constrained court view, this allowed for the final limitations on court power to erode. Rosenberg argues that “under this condition, courts, by ordering action, allow[ed] officials to do what they believe[d] need[ed] to be done without their taking full responsibility for it” (102). If an elected official’s constituents opposed desegregation, unfortunately, it would harm their chances for re-election to support integration in public schools. Therefore, “it seems fair to suggest, then, that part of the reason that courts were effective in helping to bring about desegregation in the late 1960s and early 1970s was that many crucial actors were willing

to act but fearful of the consequences.” (Rosenberg 103). There is evidence of this dynamic among elected officials in the fight for desegregation in South Carolina. The dynamic was so strong that: “Pre-1965, three-fifths of the major candidates supported segregation, while from 1966 to 1973 nearly two-thirds took ‘innovative stances on integration.’ And, by 1970, Governors Holton of Virginia, Scott of North Carolina, and

McNair of South Carolina publicly supported desegregation” (Rosenberg 95). Supporters of the decentered court model propose that other factors might have been a preceding cause, but the fact remains that the majority of candidates directly opposed desegregation before federal funds were in question, and the governors of states in the Deep South supported it once those funds were threatened.

Proponents of the decentered view, sometimes referred to as the dispute-oriented view, contend that cultural changes also contributed to desegregation’s realization in public schools. In fact, the activity of many civic organizations increased during this time. For example, according to Table 4.3 in Rosenberg’s The Hollow Hope, the

NAACP income climbed from $391,000 in 1953 to over $1,000,000 by 1960....The total for all civil rights groups, moreover, increased almost fivefold from 1948 to 1958, [although] one need not cite Brown as a sole cause -- the murder of Emmett Till was important as well -- to find plausible evidence of some casual linkages at stake (McCann 723)

There are certainly other plausible causal mechanisms driving the increase in the

NAACP’s income, yet this increase certainly challenges the criticism that Brown I produced virtually no social change, as it seemingly elevated support and funding for civil rights organizations. Additionally, the 1957 and 1960 Civil Rights Acts also likely contributed to the impetus for social and cultural change, as they slowly began eradicating segregation as law in public spaces.

CHAPTER FOUR

How the State and Local Governments Blocked South Carolina from Integrating

Public Schools Following Swann and Related Cases

With a proper understanding of the limitations on court efficacy, and the conditions that can maximize this efficacy, this chapter will analyze desegregation in

South Carolina’s public schools in greater detail. Specifically, this chapter will answer the following questions: Did South Carolina’s public schools desegregate in the late

1960s and early 1970s? If so, was this desegregation a consequence of court action, federal funding, or a combination of both? Most importantly, this chapter will ask: Did

South Carolina’s public schools achieve integration among its students? If so, what allowed for this change? If not, what policies or institutional limitations blocked this progress? Unfortunately, the data generally shows that South Carolina followed the rest of the country in that the federal funds offered under the Civil Rights Act of 1964 moved the states’ public schools towards desegregation, yet South Carolina continued to heavily rely on state and local funding. While the state’s public schools made progress toward desegregation due to increased funding and court orders, by the mid 1970s, they were still far from integration due to the political nature of desegregation efforts and the burgeoning number of private schools in the state.

As discussed in chapter three, little movement toward desegregation had occurred in the nation’s public schools prior to the Civil Rights Act of 1964. This legislation empowered states to integrate their schools by offering them increased federal funding

under Title VI, and it bludgeoned them into compliance by authorizing the U.S. Attorney

General to sue states or local school boards on behalf of Black students and parents under

Title IV. However, South Carolina differs from the national trend because it continued to fund its public schools through state and local funds. Although the state accepted federal funds for its education system, it accepted much lower amounts than other states. For example, from 1969 to 1996, South Carolina increased the annual amount of annual revenue from federal funds for its public schools by only $241,015 (Table 32, National

Center for Education Statistics, “State Comparisons of Education Statistics: 1969-70 to

1996-97”). This adds up to a significant increase in funding over time, but in comparison to New York and Florida -- whose annual revenues from federal funds had increased by

$1,272,529 and $849,589 by 1996 -- South Carolina’s increase in federal funding was minimal (Table 32, National Center for Education Statistics, “State Comparisons of

Education Statistics: 1969-70 to 1996-97”). Additionally, the majority of funds for the state’s public education system continued to come from the state and local governments.

Figure 1. Revenue (in 1996 USD) for Public Elementary and Secondary Schools, South Carolina: 1969-70 to 1996-97. Data modified from Table 32, “State Comparisons of Education Statistics: 1969-70 to 1996- 97,” National Center for Education Statistics

South Carolina’s minimal use of federal funds offered under Title VI of the Civil

Rights Act of 1964 allows for a more robust analysis of the court’s impact on desegregation in the state’s public schools, as the data reflects that South Carolina welcomed the extra revenue for its education system but did not necessarily rely on it.

However, the possibility that the slightly increased federal funds for education did most of the work in achieving desegregation cannot be completely ruled out. Amid increased federal funding, which was available only to desegregated schools, “By 1970, public schools had become South Carolina government’s biggest business -- consuming nearly

50 percent of the tax dollar” (“The History of South Carolina Schools” 23). Therefore,

South Carolina sidestepped the mandate for desegregated schools under Title VI of the

Civil Rights Act of 1964 by significantly increasing funding from the state government for its education system. The state’s federal funding thus pales in comparison to other states, yet it undoubtedly increased significantly after the Civil Rights Act of 1964. In

1963-64, federal funds accounted for 7.5% of South Carolina’s budget for its public schools, and they made up 18.7% in 1971-72 (Table 3.2, Rosenberg 99). The data indicates that these funds and outside actions furthered desegregation efforts, but there is no definitive way to know that the courts would have never achieved desegregation without outside influence. It is unlikely, however, that the series of cases, desegregation plans, pieces of civil rights legislation, and decreases in segregation levels would be possible without the monumental and unanimous Supreme Court ruling in Brown v.

Board of Education (1954). Based on the available data, on the national level, it appears that the use of federal funds and the court enforcement of desegregation are the most significant causes in the push for desegregation that occurred in the late 1960s and early

1970s. However, as noted in Figure 1, South Carolina lagged behind most other states in the degree of federal funds it received for education following the Civil Rights Act of

1964. Thus, court action at least notably contributed to desegregation in South Carolina’s public schools, but the state minimized its desegregation efforts by not accepting the greatest amount of federal funds available for its public education system under Title VI of the Civil Rights Act of 1964.

In South Carolina, the relevant enforcement cases that at least contributed to desegregation in the state’s schools are: Whittenberg v. Greenville County School District

(1969), Adams v. School District Number Five, Orangeburg S.C. (1971), United States v.

Chesterfield County School District (1973), and United States v. Saluda County School

District (1973). In Whittenberg, the South Carolina District Court ordered over twenty school districts in the state to collaborate with HEW to modify their desegregation plans and bring them in compliance with the Civil Rights Act of 1964 within 30 days of the order. The district court gave these school districts only 10 days after receiving the revised desegregation plans to argue their constitutionality and echoed HEW’s authority to halt federal funding to these districts if they did not cooperate, thereby strongly enforcing the mandate to desegregate under Brown I. In Adams v. School District Number

Five, Orangeburg S.C. (1971), the Fourth Circuit Court of Appeals remanded the case to the lower courts with instructions to reconsider the school district’s desegregation plan under Swann and Davis v. Board of School Commissioners of Mobile County (1971), noting that the district court should give special attention to Swann and should especially consider busing as a means to achieve desegregation in the school district. United States v. Chesterfield County School District (1973) comes from the Fourth Circuit as well. This

case concerned discrimination in the Chesterfield schools’ employment practices, and the court ruled that the firing of seven out of nine Black teachers was racially discriminatory.

The district did not terminate any white teachers due to their state interest in improving

South Carolina’s public education, despite several white teachers earning lower marks on the National Teacher Examination than the Black teachers the district let go. United

States v. Saluda County District (1973) also comes from the Fourth Circuit Court of

Appeals. In this case, the Saluda County School Board tried to work around the desegregation plan HEW gave them by creating a separate Hollywood school district, which contained Saluda County’s predominantly Black school. The Fourth Circuit remanded the case to the district court with strict instructions to reinstate the authority of the Saluda County School Board, as the circuit court noted the clear discriminatory motives behind the creation of the Hollywood district.

The period between these cases corresponds with significant improvement in segregation levels throughout South Carolina. In 1964-65, merely 0.10% of South

Carolina’s Black students attended schools with white students, and that figure was

93.9% in 1972-73 (Table 3.2, Rosenberg 99). Figure 2, located below, shows the state’s progress toward desegregation in public schools during this period.

Figure 2. Percent of Black Students Enrolled in Public School with White Students, South Carolina: 1954- 55 to 1972-73. Data modified from Appendix 1, The Hollow Hope: Can Courts Bring About Social Change?, Gerald M. Rosenberg.

Therefore, there is, at minimum, a direct and positive correlation between the amount of cases that enforced the precepts of Brown I, Swann, and Green and the level of actual desegregation in South Carolina’s schools. The increase in federal funds, though it was minimal, also occurred during this period, so it cannot be ruled out as a causal mechanism for increased desegregation levels in the state. South Carolina’s limited use of these federal funds, however, suggests that the federal courts played a greater role in achieving public school desegregation throughout the state than federal funding did.

Regardless of whether the federal courts or funds had the most significant impact, these enforcement cases and federal funds may not have even existed without Brown I. Thus, perhaps the best way to interpret Brown v. Board’s impact is to view it as the critical point in a long and path dependent journey towards optimum desegregation in public schools across the nation. In this view, the courts critically furthered progress by opening up opportunities for further litigation and government discourse.

South Carolina’s public schools desegregated in the late 1960s and early 1970s, but that progress was limited, as the percent of Black students enrolled in public schools with white students stagnated around 1970. Additionally, while it is the best measurement available, the percent of Black students in South Carolina enrolled in public schools with white students has some limitations. For example, the measurement does not differentiate between the number of white students in these schools. If a school consisted of 90% or more white students -- fitting the U.S. Commission of Civil Rights’ definition of highly segregated -- but had at least a few Black students, this measurement could give the misleading impression that those students are in a desegregated school. To be sure, such a school is desegregated in the very basic sense that it contains students of multiple races, but such schools are still highly segregated due to the disproportionate distribution of students from different backgrounds. Therefore, the fact that each year featured more

Black students attending public schools with white students does not definitively mean that integration occurred in South Carolina’s schools. In fact, while the percent of Black students enrolled in schools with white students increased, the total enrollment for South

Carolina’s public schools decreased. Accompanied with a mass exodus of white students to private schools, this translates to more Black students entering schools with at least some white classmates, but the total number of those white classmates declined in public schools across the state.

Following the first court-enforced desegregation plans in South Carolina in 1969-

70, white students enrolled in private schools en masse. According to an account of desegregation in the Richland County, South Carolina School District, by September of

1970: “Enrollment increased to 38,387, but it was apparent the number of white students

was decreasing. No white students appeared at Webber Middle School, Hopkins High

School, Greenview Elementary, Perrin-Thomas Elementary, Ridgewood Elementary, or

Nance Elementary” (Montgomery 82). Thus, while over 90% of the state’s Black students attended public school with white students by 1970, areas remained that were still deeply segregated.

South Carolina did not have compulsory school attendance laws as of 1970, but these white students did not halt their education. Instead, they enrolled in the private schools that were quickly developing throughout the state. While enrollment for white students was falling among the county’s public schools, “the white private schools --

Hammond, Timmerman, Christian Day, and Heathwood Hall -- were flooded with applications. Only Heathwood Hall was open to all races. Throughout the state, private schools enrolled 10,000 new students. White flight had begun” (Montgomery 82). Ten thousand new students is significant, but it pales in comparison to some estimates of the number of students in the state’s private schools during this period. In the years following the Civil Rights Act of 1964, “134 private academies popped up across the state, all but three of them only for whites,” and some scholars estimate that “private enrollment pushed 50,000 students” (Hawes, Adcox, Bowers, Moore, and Smith). Data from the

National Center for Education Statistics corroborates this estimate, as they figure that over 56,000 white students were enrolled in private school as of 1989 (Table 8, “State

Comparisons of Education Statistics: 1969-70 to 1996-67”). In addition to this large-scale movement to private schools, white families found other ways around sending their children to integrated public schools. For example, Richland County’s “desegregation plan was a geographical zoning plan for all district schools. It was based on the concept

of neighborhood schools with boundaries drawn according to HEW guidelines so as to maximize rather than minimize desegregation” (Montgomery 76). In order to avoid attending an integrated school, parents participated in “the practice of white students being ‘adopted’ by relatives to avoid going to their assigned school” -- which the county school board eventually investigated (Montgomery 82). Of further significance is the resistance to busing in Richland County. Under the county’s plan, “There would be no busing to achieve desegregation. No schools would be paired, i.e., School A takes grades

1-2 and School B takes grades 3-4” (Montgomery 76). Thus, South Carolinians' deep- seated resistance to integrate the state’s public schools took many forms, and parents attempted sneaky maneuvers to keep their children in the public-school system but in segregated schools. Other parents chose to enroll their students in private schools, and both of these actions kept the state from making progress towards full integration in its public schools.

Importantly, the state government directly sponsored the early days of private school development in South Carolina through the Tuition Bills enacted by the 1962-

1963 General Assembly. The state legislators grew weary of the federal governments’ policies aimed at eroding racial segregation, specifically through the passage of the Civil

Rights Act of 1957 and 1960, and swiftly passed these Tuition Bills. Therefore, “Before the Civil Rights Act could take effect state lawmakers passed the Tuition Grants Bill” which “allocated $250,000 to pay tuition grants to parents whose children attended secular private schools during the 1964-65 academic year” (White 390). This state funded encouragement of private schools continued beyond the 1964-65 school year. Tuition grants were given under the Tuition Bills until “May 31, 1968, [when] the Fourth Circuit

Court of Appeals ruled that the Tuition Grants Act was illegal” (White 391). The students eligible for these grants were not exclusively white students under the written law.

Section 59-41-20 of the South Carolina Code of Laws defined these eligible children by stating that: “every school child in the State who has not yet finished or graduated from high school and who desires to attend a private school located within the State” (South

Carolina Code of Laws). The discriminatory element of this legislation comes from the policies held by the newly developed private schools throughout the state, as the majority of them admitted exclusively white students. Thus, under the written law, any student who wished to attend a private school in South Carolina had the ability to do so; however, due to the limited seats for Black students in these schools, the legislation helped the state’s white students leave its public schools system and enter its private ones.

The White Citizen Councils’ involvement with this rise in private schools throughout South Carolina indicates that the development of these schools resulted from racial motives rather than concerns over educational quality. A prime example of this occurred in Orangeburg County, which began desegregating schools in 1964. After this change:

a group of whites formed a private academy to serve the community’s white students who did not wish to attend desegregated public schools. The group included several wealthy whites, such as Frank Best and T. Elliot Wannamaker. Best, whose Orangeburg radio station, WDIX, broadcasted Citizens’ Council programming, had been a part of an earlier attempt by members of the White Citizens’ Councils to establish a private school system. Wannamaker, who owned a chemical company, also had ties to the Citizens’ Councils of America (White 389)

This activity from the White Citizens’ Council shows the racial aspect of the push for private schools because of the organization’s historical identity as a white supremacist 54

group. According to the Encyclopedia of North Carolina, “they were similar to the various white supremacy groups that grew out of the extreme racial tensions defining southern culture after the Civil War” and publicly condemned violence used by the Klu

Klux Klan, yet many of its members were convicted of violent, racially motivated attacks. Further, the organization began as a response to federal policies aimed at ending racial segregation in the 1950s, particularly in schools (“White Citizens Councils”). Thus, racially discriminatory groups were directly involved in resistance to desegregated schools, and they turned to private schools as a way to avoid it. This organization attaching their name to the proliferation of private schools in South Carolina demonstrates that these institutions grew, at least in part, due to racially discriminatory beliefs.

Another example of racial motives impacting South Carolina’s education system comes from the public’s relationship with the NAACP in the state. From the emergence of a few NAACP branches in South Carolina in the 1930s, to the aftermath of Brown v.

Board of Education, the more powerful, white citizens drove members of these branches out of the state. Economically, white citizens punished dissent and branch organization by removing members from their jobs. Clarendon County worked to form a NAACP branch in 1949-1950, and at this time, members did not push for an overturning of the

Plessy “separate but equal” doctrine. Instead, Black residents of this county merely advocated for equal facilities and funding for the education of the county’s Black and white students. Those who publicly advocated for this moderate progress and joined the efforts to build a local NAACP branch, however, suffered several economic harms. In

Clarendon County, “On June 9, DeLaine presented the parents' grievances to Clarendon

school officials, and two days later he was relieved of his teaching and administrative duties at the Silver School[,]” and “parents managed to force Benson's resignation by the following October” (Lau 202). Even with moderate requests, the all-white county school board swiftly quelled any vocalization of racial inequality in the county’s school system by firing dissenters from their positions. These economic effects plagued members of the

NAACP who worked outside of the public realm as well. The individuals who signed the petition that led to Briggs v. Elliott became so cut off from the local economy that most of them were forced to leave the state. For example, “Harry Briggs...signed the petition and was fired from his job as a gas station attendant at a local filling station. His wife...lost her job as a maid at the Summerton Motel...James Brown was let go after ten years of working for the local Esso” (Lau 203-204). Direct termination from employers certainly plagued those who signed the petition, yet indirect economic struggles also impacted these individuals. These indirect consequences meant that “Many lost access to credit and to farm and business supplies” and “others had bank loans called in or were thrown off their land” (Lau 204). Therefore, once the petitioners’ employers fired them, they had virtually no means of survival left in Clarendon County, as the credit companies and banks cut off their ability to cultivate the land for economic sustenance. Given these realities, for the Black residents, “to openly challenge white supremacy in Clarendon

County quickly became associated with leaving town” (Lau 204). While this situation in

Clarendon County predates the Brown ruling, it demonstrates that racial motives undoubtedly impacted the NAACP’s ability to advocate for greater educational equality, and it illustrates the expansive ways that the dominant white citizens economically punished those who spoke up.

Unfortunately, from the early days of the NAACP’s presence in South Carolina, white citizens also forced its members out of the state with physical violence. The violence that characterized Clarendon, Chesterfield, and Cheraw County during the development of their NAACP branches serve as examples of this throughout the state.

Minister Joseph DeLaine acted as the primary figurehead for the formation of a NAACP branch in Clarendon County, and he “was informed that the Klu Klux Klan was ‘going to take him to ride if he didn't shut his mouth’” (Lau 203). Thus, even prior to formally organized resistance to school segregation, white supremacists violently expressed their resistance to change. The threat of physical violence was so great that DeLaine utilized armed guards outside his house, yet the KKK’s statement proved true when “his

Summerton home went up in flames as the local fire department stood by and watched it burn to the ground” (Lau 203). While there is no direct evidence that the KKK was responsible for this fire, it is a reasonable conclusion to presume their culpability given their previous threats, their history of burning crosses and homes, and the fire department’s inactivity. The NAACP of Cheraw and Chesterfield County experienced similar attacks in its early development. In these counties, Levi Byrd operated as the point person for creating a formal branch, and he too “became a victim of racial violence that launched his activist career” (Lau 109). As Black residents at large who supported the formation of a NAACP branch suffered in Clarendon County, so too did they in

Cheraw and Chesterfield County. Black existence in these regions “was regulated by a veneer of paternalism that masked underlying conflict, suppressed dissent, and justified brutal violence in response to the slightest challenge to the racial dreamworld it supported” (Lau 111). Again, these attacks predate Brown and the rulings that came in its

wake; however, they reveal the lengths that white citizens would go to for conservation of the status quo and a superior education for white students. In the context of these economic and physical attacks for those who pushed for racial justice in South Carolina’s public schools, it is unsurprising that the state’s residents and governments continued to act in ways that, in effect, hindered progress toward integrated schools. For the state’s residents, this included white parents evading new school zones meant to achieve desegregation by having relatives in other regions adopt their children, moving their children to private schools en masse, and creating private schools that accepted exclusively white students.

The state government enacted policies that preserved the status quo by enacting the Tuition Bills, minimizing federal funding for its public schools, and refusing to accept desegregated schools as reality until the federal courts forced it to. While the federal government hindered full integration of the state’s private schools as well -- through the

IRS allowing tax exemptions for racially discriminatory private schools in written policy until 1970 and in effect until 1977 -- the examples of Clarendon, Chester, and Cheraw

Counties illustrate the lengths that individuals residing in South Carolina and working in the state government would later resort to in order to resist fully integrated schools.

The mass movement of white students to private schools harmed more than South

Carolina’s progress toward fully integrated public schools: it also harmed the educational achievement of the students who remained in those public institutions. Additionally, evidence indicates that Black students experienced this harm disproportionately. Until

1978, South Carolina did not legally recognize the need for special attention and funding for public schools composed of majority Black students. In 1978, the South Carolina

General Assembly passed The Basic Skills Assessment Act. Under this legislation, the

South Carolina Department of Education formulated diagnostic exams “meant to reveal weaknesses in math, reading, and writing[,]” and “the tests confirmed the depressing fact that many students had a poor grasp of the basics” (“The History of South Carolina

Schools” 25). Thus, the mass exodus of students to private schools decreased the educational quality of those who stayed in them, across the board. Although these significant departures from the state’s public schools affected all students’ educational attainment, they especially impacted the Black students’. On these same diagnostic tests,

“As a class, Black children were the furthest behind. On average, they achieved scores 50 percent below whites” (“The History of South Carolina Schools” 25). While all public school students suffered from the racially motivated move of thousands of students to private institutions, this movement further highlighted inequalities in the state’s public education system through its heightened effect on Black students.

The educational effect of the transition to private schools was likely more significant than these diagnostic tests reveal, as the South Carolina Legislature enacted policy aimed at improving certain public schools in the year prior to The Basic Skills

Assessment Test. In 1977, Governor Edwards signed The Education Finance Act, which was “perhaps the most ambitious piece of education legislation in the state’s history” and

“specifically addressed the underfunding issue in rural and Black-majority districts”

(“The History of South Carolina Schools” 24). Importantly, the act did not equalize spending on education across all of South Carolina’s private schools. Instead, it established “a ‘minimum foundation program’ for every student and poured nearly

$100,000,000 into the system over a five-year period” and “also tied state funding to a

set of ‘defined minimum standards,’ developed in 1974 by the State Board of

Education”(“The History of South Carolina Schools” 25). Since the legislation specifically aimed at improving funding for schools with large numbers of minority students, the initial effect of the surge in private schools on Black students was likely much larger than demonstrated on the diagnostic tests developed out of The Basic Skills

Assessment Act.

The surge in private schools, usually and explicitly for only white students, also occurred in the rest of the Southern states. Additionally, this increase occurred as a direct result of the courts beginning to overturn segregation in public schools. When the first school segregation cases -- such as Levi Pearson v. Clarendon County and School

District No. 26 (1948) -- were formulated and litigated “in the 1940s...private school enrollment in the 15 states of the South rose by more than 125,000 students – roughly 43 percent – in responses to U.S. Supreme Court decisions outlawing segregation in graduate and professional schools in the South” (Southern Education Foundation, para

1). As the courts issued more rulings following the enactment of the Civil Rights Act of

1964, and the threat of integrated schools actualized for the South, private schools boomed once again throughout the whole region. According to the Southern Education

Foundation, “From the mid-1960s to 1980...private school enrollment increased by more than 200,000 students across the region – with about two-thirds of that growth occurring in six states: Alabama, Georgia, Mississippi, North Carolina, and South Carolina” (para

6). As mentioned previously in this chapter, private schools in South Carolina enrolled

10,000 students before the Civil Rights Act of 1964 and 50,000 students after its enactment. Thus, the rise in private schools in South Carolina alone accounts for a fifth of

the total enrollment increase across the South. The growth of private schools throughout the South, and how significant South Carolina was in their growth in the region overall, offers important context by demonstrating that this approach took hold on a regional -- and some would argue a national -- scale, and the state heavily implemented this means of avoiding full integration for its primary and secondary students.

A deeper examination of the spawn of private schools in Richland and Beaufort

County illustrates the significance of this mass flight to privately funded, exclusively white schools for the state as a whole. In Richland County, “Private school enrollment increased rapidly. In one year, enrollment had gone from 3,000 to 5,000 in Columbia” and this jump occurred in large numbers in a few schools, such as “Hammond School, which opened in 1966 with 239 students, [and] now had 1,200. Wildewood School opened in 1971 with 255. They enrolled 400 for 1972...When Heathwood Hall opened its secondary school, enrollment leapt from 369 to 1,200” (Montgomery 89). This growth was not unique to large cities such as Columbia, and it occurred in less populated areas such as Beaufort, located in South Carolina’s lowcountry. Private schools grew so much there that: “Beaufort County residents established six private schools between 1965 and

1971. Between the 1965-66 school year -- the first year a private school for white existed in Beaufort County during Freedom of Choice -- and the first year of Full Integration in

1970-71, enrollment of white students in private schools jumped from 198 to 1,144”

(Kelsey 81). The following graph, Figure 3, demonstrates the large jump in private schools in Beaufort following the enforcement of court-ordered desegregation and the removal of federal funds in the mid-1960s to early 1970s. This table tracks the enrollment figures for Beaufort’s seven private schools during this time period.

Figure 3. Enrollment of Private Schools in Beaufort, South Carolina from from 1964-65 to 1971-72. Data modified from Table 5.1, p 82, At Their Own Deliberate Speed: The Desegregation of the Public Schools in Beaufort County, South Carolina, Anne Kelsey

While enrollment increased for most of Beaufort’s private schools during this time, it slightly decreased for The Mather School -- which was an all-Black private school that halted operations in 1968 (Kelsey 82, Copeland para 4). The other five private schools in

Beaufort both accepted only white students and experienced gains in enrollment after the passage of the Civil Rights Act of 1964 and the federal courts beginning to enforce desegregation plans, along with threats of removing federal funds from schools that refused to desegregate. Thus, in Richland and Beaufort County, and in South Carolina as a whole, private schools boomed as desegregated public schools became reality across the state.

It is worth detailing that even within desegregated schools, the white students still maintained an upper hand in those institutions through a number of policies that made

Black students outsiders. Even into the 1970s, when the federal government forced South 62

Carolina to desegregate its public education system, “In many cases white officials simply refused to grant transfers to African American students and even when such requests were granted, Black students were left to feel like isolated minorities in mostly white schools” (White 387). The desegregation plan in Rock Hill, South Carolina serves to illustrate this point. The county had two high schools: Rock Hill High School and

Emmitt Scott Senior High, with the former being originally all-white and the latter all-

Black. According to a history of desegregation in Rock Hill County entitled Before the

Corridor of Shame, “Instead of rezoning half of the white students from the Rock Hill

High School to the Emmett Scott Senior High, and vice-versa, school district administrators decided to shut down Emmett Scott completely, forcing all the high school students from the district, both Black and white, into what became an overcrowded Rock

Hill High School” (Vaden 122). Given that the Black students transferred into the formerly all-white school, it is disheartening but unsurprising that the newly desegregated

Rock Hill High School nonetheless treated the Black students like outsiders. The school achieved this through its “discriminatory discipline measures, academic tracking by race, and Black exclusion from extra-curricular activities and the school community, [which] maintain segregated learning and white supremacy in the desegregated system” (Vaden

123). The ways that Rock Hill High School perpetuated segregated learning are pervasive. These methods include that “school colors and mascots had been left to reflect

Rock Hill High’s history and all-white student body[,]” and “students were excluded from the all-white school government system and several athletic teams” (Vaden 129).

Such exclusionary practices plagued other schools in South Carolina, especially unequal disciplinary consequences. The state enacted a Student Disciplinary Law in 1973, but

before this legislation, it is estimated that Black students “received expulsions and suspensions 3 times as often as white students” (Vaden 124). This discussion of policies that upheld segregation, even within desegregated schools, serves as a reminder that desegregated schools are a start to progress and not an end. Further, it shows a resistance to true integration in South Carolina even once its schools were forced to desegregate or lose their federal funding.

The motive for white parents to remove their children from South Carolina’s public schools and into all-white public schools is undeniably a racial one, yet some feared declining educational quality -- a fear that politicians fueled along racial lines.

Some parents might experience “the genuine fear of many Southern whites that a massive influx of Black students into formerly white public schools will slow down learning[,]” but even this sentiment contains racially discriminatory elements as it implies that the white students’ intellectual capabilities are above that of the Black students (“Private

Schools: The Last Refuge” para 2). Interestingly, some scholars have shown that the opposite effect is true: attending a segregated private school can significantly hinder the quality of students’ education. For example, “On the whole, concluded a recent report by the Southern Regional Council, the segregation academies ironically offer the white pupil

‘an education that is not ‘separate but equal,’ but separate and inferior’” (“Private

Schools: The Last Refuge” para 4). Thus, movement to these private schools did not necessarily translate to improved quality of one’s education, and it can actually hinder it.

This bolsters the argument that white parents utilized private schools as a means to avoid having their children attend desegregated public schools once those schools became a reality for South Carolina.

Another factor that fueled the mass exodus of white students to private schools, thereby hindering South Carolina’s ability to integrate its public education system, is the political discourse surrounding the state’s schools -- as well as the means to delay desegregation for as long as possible. Desegregation was political on “the national level,

[as] Nixon fired Leon Panetta, HEW civil rights chief, for following court orders rather than his. US Attorney General John Mitchell took up the president’s mantle against HEW

Secretary Elliot Richardson[,]” and South Carolina supported Nixon’s view through

“Strom Thurmond[, who] led the southern senators by standing up against the so-called

‘invasion of the feds’” (Montgomery 80). Strom Thurmond and President Nixon maintained a symbiotic relationship with each other. Thurmond brought Southern support to Nixon through the Southern Manifesto, and it was Thurmond’s understanding that

Nixon would maintain desegregation in return. When it became apparent that the federal government would not budge in its effort to get South Carolina’s schools to desegregate,

Thurmond -- and South Carolina Governor McNair -- appealed to President Nixon for more time, which was unsuccessful (“The History of South Carolina Schools” 24).

Although Nixon was unreceptive to Thurmond’s appeal for more time, the pair’s policies often worked in conjunction. For example,

It was in the 1968 campaign that the "southern strategy" was born. Its message relied on code words and phrases..."freedom of choice," a term used by Thurmond, meant opposition to school desegregation. Similarly, Nixon pledged that he would not make the South a "whipping boy," meaning that his administration would enforce the law, but also would be sympathetic to southern concerns (Smith para 38)

To Thurmond and other Southern representatives, Nixon thus represented a content middle ground whereby the South could continue making minimal progress toward desegregation without consequence. 65

The South Carolina governors during this time, Governor Robert McNair and

Governor John West, also resisted desegregation at times. However, once desegregated schools became law, Governor McNair eventually accepted the need to cooperate with the changing times. In January of 1970, following court orders to desegregate the public schools in Darlington and Grenville Counties, McNair publicly stated:

We have run out of courts and we have run out of time...We must admit to ourselves that we have pretty well run the legal course and the time has come for compliance or defiance. In South Carolina, we have always followed the law. We will continue to do so. We will comply with the court rulings (Grose 277)

Governor McNair’s statements reflect a resistance to desegregation in that he appears to only support it due to the legal mandate to do so, which indicates that South Carolina may have never desegregated its education system without action from the federal government and federal courts.

In his 1971 State of the State Address, Governor West advocated for state-funded grants for students to attend privately funded universities, many of which were still segregated at this time. Both his 1972 and 1973 addresses included requests for the state legislature to allocate large portions of the budget to South Carolina’s education system.

For example, in 1972, he asked for increased state funding for teacher’s salaries, vocational education, and childhood development, making “these proposals amount to an educational package of $24.5 million for South Carolina, and represent the major thrust of my proposals” (West “State of the State Address 1972”). It is difficult to assess West’s motives behind these requests, as these state funds certainly help South Carolina’s public schools, yet it also limits the threat of its schools failing due to terminated federal funds due to noncompliance with desegregation, which Title VI of the Civil Rights Act of 1964 authorizes. However, in his final address, Governor John West expresses positive 66

remarks about the state’s desegregated schools, saying: “If anything, our experience in adapting to the unitary school system has expanded our horizons, and broadened our concept of the educational function...noteworthy developments have grown out of these years of adjustment” (West “State of the State Address 1974”). By mentioning the innovations spawned by changes to South Carolina’s school system, Governor West, at least publicly, positions desegregated schools as a positive achievement for the state.

Governor West reinforces progress towards unitary schools in a favorable light, whereas

Governor McNair takes a more neutral stance and only commits to obedience to the law; however, both governors’ statements regarding public education in the state illustrate how desegregation functioned politically.

In South Carolina, desegregation in public schools was an immensely political issue on the local level as well. For example, “In 1971, school board elections became a battlefield for liberal Democrats and conservative Republicans. Political groups based in neighborhoods and schools fought for their turf. Race-oriented groups demanded their place on the ballot” (Montgomery 83). In the context of rapidly changing school systems, school boards existed as a means for Democrats and Republicans alike to significantly shape the structure of their communities, as they had discretion over enforcement of desegregation plans, disciplinary policies, and student activities. The candidates also divided themselves along partisan lines, and “The Republican (GOP) candidates for school board announced they were running as a team for the five vacant seats. Dr.

Edward Kimbrough, Michael Kushner, Dr. William Linder, and Don Upton built their platform on anti-busing, freedom of choice, and strict discipline” (Montgomery 81).

Candidates for school board thus adopted the same policies regarding public

desegregation that their national parties fought to maintain throughout the late 1950s and the 1960s. School board candidates and members were not the only individuals who became political over desegregation in public schools, however. Parent groups became vocal as well, and in Richland County, “A Black activist held the school board hostage in their headquarters overnight. And in the end, he got what he asked for, including the removal of certain high school principles and more Black administrators in the main office” (Montgomery 83). Thus, parents, students, and politicians approached the South

Carolina education system as an entity that they could control with shows of force and power. Even in the already desegregated schools of Richland County, the racial composition of schools continued to be a viable political issue.

Another significant reason that mostly all-white private schools sprang up in

South Carolina, and the rest of the South, throughout the 1960s is that until Green v.

Connally and McGlotten v. Connally, the Internal Revenue Service issued tax exemptions for privately funded schools, regardless of whether or not those schools were racially discriminatory in their admissions practices. In the decade and a half following Brown I:

the Internal Revenue Service (IRS) vacillated in their allowance of tax deductions for private schools. In the early 1960s, facing growing backlash from civil rights organizations, the IRS temporarily suspended applications of avowed “segregation academies” for federal tax exemptions, a tax status permitting taxpayers in Southern states to reduce their federal tax income when contributing to racially exclusionary private schools. But in 1967, it announced tax deductions for contributions for any segregation academy (Southern Education Foundation para 7)

Most of these new, private schools for white students developed in South Carolina -- and the rest of the South -- in the period between 1965 and 1970. This timing is significant because it allowed these private schools a full year out from the Civil Rights Act of 1964 to get their institutions up and running, meaning that a good deal of individuals who 68

started these schools were likely influenced to start them due to the passage of that legislation. The fact that the boom in private schools largely slowed down in 1970 is also significant, because around this time the IRS began to change its policies related to tax deductions and benefits for racially discriminatory private schools. In Green v. Connally, the Supreme Court “avoided a direct ruling on the constitutional claim that the due process clause of the fifth amendment prohibited the federal government from providing financial support through tax benefits to institutions that discriminate on the basis of race” (Anderson 361). Surprisingly, this case only fueled more private schools to open, and more white parents to enroll their children in these schools, as both the private school owners and the parents felt that the IRS policy could soon get overturned. According to an article in the Yale Law and Policy Review,

At this point, parents increasingly turned to private segregation academies to prevent their children from being educated in a racially integrated setting. The speed with which the academies were established -- the number of students they enrolled -- is remarkable. Between the years 1966 and 1972, southern private school enrollment rose from an estimated 25,000 to 535,000 (Hershkoff and Cohen 6)

Further, the IRS finally changed its policy in 1971. “Following the court order,” Green v.

Connally, “the IRS adopted a non-discrimination policy applying to private schools in

1970, though it took eight years to be implemented” (Montgomery 84). Thus, although the IRS had an official policy of not providing tax benefits to racially discriminatory private schools as of 1970, it was not enforced until 1977. Effectively, until 1977,

“Consciously, deliberately, and against continual objection, the Internal Revenue Service has approved exemptions for private, racially segregated schools under the charitable sections of the Internal Revenue Code, thus sharing the costs of developing them” (Spratt

1). Similar to the progress achieved through Title VI of the Civil Rights Act of 1964, 69

money is another causal mechanism that impacted desegregation in South Carolina’s public schools, as reflected in the way that tax exemptions for private schools fostered an era of widespread white flight from the state’s public education system -- a flight that demonstratively and disproportionately harmed the Black students who remained in that system.

CONCLUSION

Thesis Summary and Current Consequences for South Carolina

The push for desegregated public schools across the nation, and specifically in

South Carolina, was arduous and lengthy, beginning with Levi Pearson v. Clarendon

County School District (1948) and Briggs v. Elliott (1952) and ending with a series of cases challenging desegregation plans in the late 1960s and 1970s. Despite the Supreme

Court affirming the constitutionality of busing as a means to achieve desegregation in public schools in Swann v. Charlotte-Mecklenburg (1971), various school districts in

South Carolina deliberately avoided busing -- or limited busing by refusing to combine school zones and account for housing segregation -- until the federal courts ordered it.

Twenty-three years after the initial suit in Pearson, the Fourth Circuit Court of Appeals continued to consider desegregation plans, including busing methods, for various school boards in South Carolina in cases such as Adams v. School District Number 5,

Orangeburg, S.C. (1971), United States v. Chesterfield County School District (1973), and United States v. Saluda County School District (1973). As desegregated public schools became an increasing reality for South Carolina, the number of white students in these schools dwindled dramatically. The improving desegregation figures, as reflected in the percent of Black students in public schools with white students, is therefore complicated because the total number of white pupils in these schools notably decreased.

Additionally, the state and federal government contributed to this massive movement of white students to private schools in South Carolina. The state legislature allowed for this

move by enacting the Tuition Bills, which in writing provided funding for all students in the state who wished to attend private school, but in effect translated to primarily white students entering private institutions due to the majority of them admitting exclusively white pupils. Increased dependence on state funds for public education also limited integration efforts in public schools, as minimizing federal funds for education also meant reduced accountability for desegregation under Title VI of the Civil Rights Act of

1964 -- which authorized HEW to terminate federal funds to public schools that either had no desegregation plan or made no progress toward desegregation. The South

Carolina government also hindered progress toward full integration in its public schools through statements from its political leaders. For example, U.S. Senator Strom Thurmond garnered support for President Nixon across the state and in exchange expected him to resist school desegregation. When the Fourth Circuit Court of Appeals began ordering desegregation for South Carolina’s public schools, Thurmond and the state governor appealed to Nixon for more time, which the President denied. Thurmond, therefore, represents the state’s policy of delay in response to pressure from the federal courts and government for school desegregation. The South Carolina governors also impeded desegregation in the state’s public schools, as they only took action amid significant pressure from the federal government and courts. For example, Governor Robert McNair undertook a policy of delayed and minimized compliance with desegregation policies until the Fourth Circuit Court of Appeals strengthened its desegregation rulings in the early 1970s. At this point, McNair issued a public statement expressing South Carolina's identity as a “law and order” state and announcing that it will abide by these new court

rulings. Effectively, then, Governor McNair absolved himself of responsibility for this change in the state’s public schools and placed the impetus on the courts.

The federal government also hindered South Carolina’s ability to fully integrate its public education system. Until 1970, the Internal Revenue Service designated racially discriminatory private schools as tax exempt, allowing them to flourish both internally and externally from tax exempt donations. The IRS excluded private schools that admitted strictly white students from this exemption status in 1970, but they did not robustly enforce this policy until 1977. Effectively, this translated to over a decade of significant movement of white students to private schools across the nation and in South

Carolina, as the state’s private schools began experiencing notable increases in enrollment around the passage of the Civil Rights Act of 1964. Further, the federal courts themselves also hindered significant gains in desegregation by issuing a decade of conservative opinions. Although Brown v. Board of Education (1954) unanimously overturned the Plessy (1896) “separate but equal” doctrine; it took over a decade for the federal courts to rule in Alexander v. Holmes County Board of Education (1969) that local school boards had exercised the window of “all deliberate speed” and must immediately pursue desegregation. By authorizing the district courts to hear the details of local school boards’ desegregation plans, in Brown I, the Supreme Court unknowingly gave these boards an effective tool to delay actual change. Additionally, even once the federal courts began enforcing desegregation more strongly in the late 1960s and early

1970s, conservative circuits such as the Fourth Circuit Court of Appeals at times issued decisions as narrow as allowed by the law. For example, in many of the Fourth Circuit cases in this time period, the court merely ordered the school board in the case to either

work with the Department of HEW to develop a desegregation plan or follow a plan handed down by HEW. An example of this is Whittenberg v. Greenville County School

Board (1969), in which the Fourth Circuit ruling matches that described above. Rulings of this kind acted as a judicial slap on the wrist, as they ordered the school district to follow the federal mandate to desegregate public schools, but they did not impose any punishments for those districts delaying progress. Given the costs of challenging a school board’s or school district’s plans in court, and the overwhelming NAACP caseload at the time, this motivated many boards and districts to delay for as long as possible, in hopes that potential plaintiffs would not have the time or funds to challenge the plans.

Therefore, if the Supreme Court also authorized the lower courts to impose penalties on school boards and districts in noncompliance with Brown I, progress toward desegregation may have occurred more swiftly, and the decade between Brown I and the

Civil Rights Act of 1964 might have seen more advancement toward desegregated public schools.

Despite the ways the federal courts could have strengthened the mandate for desegregation in the nation’s public schools, the courts at least contributed to desegregation in these schools. In light of the ways that white citizens in South Carolina reacted to Black residents forming NAACP branches and pushing for desegregated schools in the state, and the policies the state government enacted to curb desegregation efforts, desegregation would be unlikely in the state’s public schools without the force of the federal courts. Governor Robert McNair’s public statement following the Fourth

Circuit Court of Appeals enforcing desegregation illustrates how these court orders were necessary for change to occur in South Carolina. After the Fourth Circuit began ordering

districts in South Carolina to comply with the Brown I mandate and either work with the

Department of HEW to formulate an acceptable desegregation plan or follow one given to them by the department, Governor McNair publicly announced that South Carolina would maintain its identity as a “law and order” state and follow the Fourth Circuit’s orders. By attributing compliance to the courts rather than his personal beliefs or the state’s will, Governor McNair’s statement implies that South Carolina likely would not have desegregated public schools on its own.

Despite the Fourth Circuit enforcing desegregation in South Carolina’s public schools, the educational attainment of those who remained in these schools suffered from the mass exodus of white students to private schools in the 1960s and 1970s. Further, the

Black students in South Carolina’s public schools suffered disproportionately from this boom in private schools. This effect continues in South Carolina’s public schools in the current day. According to a 2018 report of racial inequalities in educational attainment throughout the state, The Post and Courier found that:

Of the 25 state high schools whose students score lowest on the ACT college- readiness test, three in four are predominantly Black and poor. And as businesses scramble for skilled employees, about half of Black students across the state score as having the math skills they’ll need for most jobs. Almost 90 percent of white ones do (Hawes et al para. 6)

Thus, racial and economic disparities persist as significant factors in the quality of education for South Carolina’s students.

Whereas the state legislature largely did not recognize this disparity in the 1960s and 1970s, the current legislature’s awareness of this issue and actions to improve it are more complicated. At least some members of the current state legislature are aware of these disparities in South Carolina’s public schools. These disparities are so great that the

head of the South Carolina Chamber of Commerce stated in 2018 that “‘We have two

South Carolinas’” (Hawes et al para. 9). Just as the movement to private schools harmed the educational achievement of those in public schools in the 1960s and 1970s, so too does the dominance of private schools in the state today. In addition to educational disparities, South Carolina’s public schools are intensely segregated in the present day, as

“One in eight schools” has “90 percent or more minority students” which is “partly because about 36,000 children, mostly white, abandon the public schools each year for private ones” that “take in more than $200 million annually in tuition and contributions”

(Hawes et al para 10). Even though many state legislators want to fix this issue, they have a limited capacity to empathize with those in public schools, and their actions have hindered improvements by overcomplicating the legislative process. In the 2018 legislative session, “lawmakers introduced some 200 education-related proposals, including bills to retool the antiquated way schools are funded and guarantee more than a

‘minimally adequate’ education” which “went nowhere in a Legislature where less than

25 percent of lawmakers actually have children in public schools[;]” however, the legislature passed over twenty bills on public education, but they centered on relatively insignificant policies such as band participation fulfilling physical education credits

(Adcox et al para. 8-9). The South Carolina legislature has the capacity to effectively improve its public education system. A 2020 study from The Greenville News found that some potent policies include “redrawing school boundaries, increasing funding, spreading affordable housing options and addressing transportation problems” (Gilreath para 5). Thus, the state legislature is aware of the racial and economic inequalities in educational attainment, yet it is unlikely to enact effective policies given its conservative

past and the standard in the South Carolina Constitution that the state government must provide only a “minimally adequate” education. The South Carolina Supreme Court defined this standard in Abbeville County School District v. South Carolina (1999) as the

“ability to read, write, and speak the English language, and knowledge of mathematics and physical science” (“South Carolina” para. 4). Thus, for South Carolina’s public schools, the constitutional standard is merely literacy in the English language, mathematics, and science, not comprehensive understanding or the ability to apply this knowledge. Even more shockingly, the South Carolina Supreme Court, on appeal of the same Abbeville case, ruled in 2014 that the state public education system, especially in

Clarendon County, failed to provide students with this definition of a “minimally adequate” education. The analysis in this thesis is, therefore, significant to the discussion of educational quality in South Carolina today because it illustrates the beginning of this unequal system from Levi Pearson v. Clarendon County School District (1948) to the series of desegregation cases and the boom of private schools in the late 1960s and early

1970s.

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