Applications for Reassignment of Pupils

• Decision Date: 10 January 1958
• Docket Number: No. 612,612
• Citation: 101 S.E.2d 359,247 N.C. 413
• Court: North Carolina Supreme Court
• Parties: Applications for REASSIGNMENT OF PUPILS. In re Josephine Ophelia BOYD from Dudley High School to Senior High School; Harold McDuffie Davis, Elijah J. Herring, Jr., and Russell Herring from Lincoin Jr. High School to Gillespie Jr. High School; Brenda Kay Florence and Jimmie B. Florence from Bluford School to Gillespie Elementary School.

Page 359

101 S.E.2d 359

247 N.C. 413

Applications for REASSIGNMENT OF PUPILS.

In re Josephine Ophelia BOYD from Dudley High School to

Senior High School; Harold McDuffie Davis, Elijah J.

Herring, Jr., and Russell Herring from Lincoin Jr. High

School to Gillespie Jr. High School; Brenda Kay Florence and

Jimmie B. Florence from Bluford School to Gillespie Elementary School.

No. 612

Supreme Court of North Carolina.

Jan. 10, 1958

J. J. Shields, Greensboro, for petitionerappellants.

Robert F. Moseley and Welch Jordan, Greensboro, for respondent-appellee.

RODMAN, Justice.

Four errors are assigned: (1) Hearing the motion to dismiss; (2) granting the motion to dismiss the appeal; (3) refusal to issue the restraining order prayed for; and (4) refusal to issue a restraining order pending the hearing of this appeal.

The date for the hearing was fixed at the request of appellants. This date was seven days after the petitions were filed seeking mandatory injunctions. At the time fixed for the hearing appellants announced their readiness to proceed, with knowledge of the motion to dismiss, filed two days prior to the hearing and five days after the filing of the petitions for mandatory injunctions. The motion to dismiss sought no affirmative relief. It was a mere statement of the reasons why the parties seeking orders from the court were not entitled to call on the court to act. G.S. § 1-581 has no application to the factual situation here presented. Collins v. North Carolina State Highway & Public Works, 237 N.C. 277, 74 S.E.2d 709; Harris v. Board of Education, 217 N.C. 281, 7 S.E.2d 538.

Is the motion to dismiss the appeal soundly based? The history of the assignment statute, the reasons given by its sponsors for its enactment, the interpretation given to it by the Advisory Committee on Education appointed pursuant to legislative direction, the language of the statute, and judicial interpretation are all in accord. Each suggests an affirmative answer.

History of the statute: North Carolina, since the beginning of the present century, has consistently pursued a policy of providing better educational facilities for all of its children. Illustrative: c. 1046, S.L. 1953, authorizing the issuance of $50,000,000 in bonds to provide funds to assist in construction of school buildings; c. 1165, S.L.1953, appropriating in excess of $120,000,000 per year for public education. These appropriations were materially supplemented by local funds. Our law at that time was mandatory that the different races should be educated in separate schools but without discrimination in favor of either race. Art. IX, § 2, Constitution of 1875. This policy of separation for educational purposes had been accepted as constitutional since the decision in Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256.

The decision in the Segregation Cases (Brown v. Board of Education of Topeka), 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873, 38 A.L.R.2d 1180, announced on 17 May 1954, immediately created problems for North Carolina. How could our declared purpose of providing an education for our children be effectively pursued? To help in finding an answer to this question, Governor Umstead, a staunch advocate of public education, on 10 August 1954, appointed a committee 'to study the effects of the decision of the Supreme Court of the United States of May 17, 1954, dealing with racial segregation in the public schools and make recommendations as to how the problems arising therefrom might be met.' This committee was composed of seventeen distinguished citizens of North Carolina. Both races were represented. The recognition given to public schools, higher education, industry, agriculture, the legal profession, and communications and public information is apparent from a casual examination of committee membership.

Governor Umstead died in the fall of 1954. The committee made its report to Governor Hodges. The report was unanimous. It was filed 30 December 1954. It was promptly made available to the Legislature which convened in January 1955. The committee, having declared its belief in the desire of the people of the State to provide for the public education of their children in a legal manner, said: 'The Committee is of the opinion that the enrollment and assignment of children in the schools is by its very nature a local matter and that complete authority over these matters should be vested in the county and city boards of education. With such authority local school boards could adopt such plans, rules and procedures as their local conditions might require. The Committee finds that public school problems differ widely throughout North Carolina and that there is even a wide variation of problems and conditions within counties themselves. As these problems unfold and develop from month to month and from year to year local school administrative units could move to meet each problem as it arises if such units are given complete authority over the matters referred to above. We, therefore, recommend that the General Assembly of North Carolina enact the necessary legislation to transfer complete authority over enrollment and assignment of children in public schools and on school buses to the county and city boards of education throughout the state.'

The committee recommended that the Legislature authorize a continuing study of the problem.

The 1955 Legislature gave its approval to the report by enacting the assignment statute and providing for a committee of seven to continue the study. Acting pursuant to legislative direction, Governor Hodges appointed a committee of seven, known as the North Carolina Advisory Committee on Education.

That Committee made a report 5 April 1956. It recommended that all school units '1. Recognize that there is no law compelling the mixing of the races. 2. Recognize that since the Supreme Court decision there can be no valid law compelling the separation of the races in public schools. 3. Declare that initial assignments to schools will be made in accordance with what the assigning unit (or officer) considers to be for the best interest of the child assigned, including in its consideration, residence, school attended during the preceding year, availability of facilities, and all other local conditions bearing upon the welfare of the child and the prospective effectiveness of his school.'

Further touching on the assignment statute, the Committee said: 'It may well be that before the people of North Carolina will give the necessary support to an honest trial of the assignment plan they will need to be assured of escape possibilities from intolerable situations--assured that no child will be forced to attend a school with the children of another race in order to get an education and assured, second, that if a public school situation becomes intolerable to a community, the school or schools in that community may be closed. To achieve these objectives there must be some changes in the North Carolina Constitution and some legislative enactments based thereon.'

It recommended the calling of a special session of the General Assembly in the summer of 1956. On 23 July 1956 the Advisory Committee on Education filed its second report. The report was addressed to Governor Hodges, Lt. General Assembly in the and Mr. Larry I. Moore, speaker of the House of Representatives. It contained proposed bills to be submitted to a special session of the General Assembly to accomplish the general purpose declared in its report of April 1956.

Among the bills proposed was a bill amending the assignment statute of 1955 which had then been incorporated in the 1955 supplement to our Consolidated Statutes as Art. 21, G.S. §§ 115-176 to 115-179. A comparison of the original with the amended statute demonstrates the purpose to make the statute conform to practical application in the operation of the schools. The 1955 act used the words 'enroll' and 'enrollment.' These words were changed to conform to the school practice to 'assign' and 'assignment.' The 1955 act required the enrollment or assignment of each child in an administrative unit to a school within that administrative unit. This was modified to permit assignment to a school outside of the administrative unit, a need in part suggested by In re Assignment of School Children, 242 N.C. 500, 87 S.E.2d 911. Provision was made for the original mass assignment of children without the formality of a hearing and with notice given personally or by publication where children would attend during the coming year but with the right reserved to apply for a reassignment to another school.

The report of the Committee became known as 'The Pearsall Plan.' The Committee issued a bulletin entitled 'The Pearsall Plan to Save our Schools.' It lists legislative recommendations made by it and says with respect to the Assignment Act: 'This bill would make certain clarifications in the present Assignment Act which was enacted by the 1955 Session of the General Assembly.'

The same document contains a series of questions and answers designed to pinpoint the Committee's recommendations and the reasons underlying its recommendations. We quote pertinent questions and answers: '1. What is the purpose of this Program? A. It is an effort to preserve North Carolina's Public School system * * * 5. If the people approve this program will my child be forced to attend school with a member of another race? A. Emphatically No. 6. Is this whole thing an effort to defy the U. S. Supreme Court? A. It is not defiance. It is an attempt to stay within that decision, even though a great majority of our citizens disapprove the Supreme Court's ruling. * * * 8. Did the U. S. Supreme Court say that my child has to go to school with a member of another race? A. No. 9. What did it say, in effect? A. Only that we cannot deny admission of a child to a public school solely on the basis of race. 10. If conditions in my child's public school...