The Choice We Face

by John N. Hale

  Despite the growth of private schools, they were not pervasive throughout the South, and they were not an option for White families without the money for tuition. Ten years after the Brown decision, during the fall of 1964, fewer than ten private schools were open in Virginia, for instance. Many were organized on short notice and were located in private residences or church buildings, and tuitions were high. In Prince Edward County, Virginia, less affluent White families had to take out second mortgages on their farms, homes, and other properties to afford private school for their children.27

  Though never the panacea envisioned by segregationists, these academies redefined the role of private education. These schools did not so much function as religious institutions, as their predecessors had since the founding of public education in the United States. As public education deteriorated in the wake of the school wars over access, private education became a southern ideal. Observing White flight and deterioration of public education during the 1960s, John Sessions, a member of the board of education in Washington, DC, noted prophetically in 1966: “The schools have deteriorated so badly that regardless of their race, people who can afford the cost are taking their kids out of public school.” The chair of the board commented, “[It is] disturbing to think that our school system could become not just all-Negro, but that it could be made up almost totally of poor children.”28

  White architects of continuing school segregation did not go unchallenged. Disappointed in his government for maintaining oppression, John Lewis committed himself to the burgeoning civil rights movement after high school. He emerged as an influential activist with the Student Nonviolent Coordinating Committee, working with Dr. Martin Luther King Jr. and gaining notoriety for publicly criticizing President John F. Kennedy. Lewis and the rising army of student activists, along with the NAACP, forged ahead. Using the courts (NAACP), grassroots organization (SNCC), and protest (King and others), they took it upon themselves to painstakingly desegregate state by state, district by district, school by school.

  Massive resistance to school desegregation ultimately failed because it could not be sustained under the judgment of a nation increasingly supporting John Lewis and those who joined him on the front lines of the civil rights movement. Within this tension between maintaining segregation and dismantling it, school choice emerged as a new form of resistance to desegregation and an effective policy that would withstand the test of time.

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  For White segregationists, the NAACP’s push for integration assaulted their individual right to choose where their children went to school, forcing them to attend schools with children they wanted to avoid. It was not only states’ rights that fell victim to federal jurisdiction after the Brown decision; Whites’ individual rights and liberties pertaining to the freedom of association—or the right to voluntarily join or leave groups, in this case school—were at stake. White southerners had historically detested what they saw as federal meddling in the affairs of the states, linked to the region’s defense of slavery during the early republic. This perceived threat to their individual right to associate—to choose where their children attended school and with whom—was tantamount to tyranny. After Brown, southern segregationists articulated a stringent defense of this new right to choose schools, and they mobilized to protect it.

  Segregationists viewed the freedom to choose as grounded in the constitutionality of the freedom of association and the rights of the individual, the same rights Whites increasingly felt were under attack by federal desegregation orders. In South Carolina, Governor George Bell Timmerman, who led efforts to repeal compulsory education laws, noted, “The parental right to determine what is best for the child is fundamental. It is a divine right. It is a basic law of nature that no man, no group of men, can successfully destroy.”29 He stated without equivocation: “We must preserve for the parents of the children of this state the right to send their children to separate [segregated] schools.”30 In Virginia, a prominent group of businessmen earned a state charter for an organization they developed in the wake of the Brown decision. They called themselves the Defenders of State Sovereignty and Individual Liberties and were clearly concerned about desegregation, though the group’s founding statement avoided mentioning segregation and race, emphasizing instead the state’s “right to regulate within its borders . . . its own domestic arrangements . . . whether education, recreational, economic, social or otherwise.”31

  Alabama policymakers employed a similar tone, further building on the ideology of choice. Forney Johnson, a segregationist lawyer and early advocate for “freedom of choice” plans, spoke of the rights of Whites: “If Negroes are to have the right of free choice in attending separate or mixed schools if they wish, then even the Supreme Court cannot deny to white people that same free choice of sending their children to separate or mixed schools.” He went on to assert, “Freedom of choice [or] the liberty of parents to direct the basic conditions under which their children shall be educated shall not be denied.”32

  Beginning in 1955, Alabama passed freedom of choice provisions to its constitution after intensive study by a state commission devoted to preserving segregation. Through freedom of choice plans, Alabama legislators defended their right to determine the process of educating the state’s young citizens, including protecting the right of families to choose where their children attended school. They removed all constitutional obligation to maintain public schools, which continued the trajectory established by several southern states. But they did not necessarily abolish the public school system. Their actions were interpreted as giving White people choice in uncertain times, providing them with the choice to send their children to segregated schools if they wanted. To facilitate this process, Black students and students of color were free to apply to enroll in White schools. But White school boards at the district level retained control of how and where students would be placed. Their plans included pupil placement laws based on a variety of measurements, including intelligence and aptitude tests, which ultimately discriminated against Black students because pupils in underfunded, segregated schools were not provided the resources needed to perform well on the exams. They also authorized local, all-White school boards to determine pupil placement based on the “safety” of students who had been removed from their background and associates (i.e., racially homogenous peers) under federal desegregation orders. If desegregation was viewed as dangerous, then Black students would not be assigned to White schools. Freedom of choice plans also provided local districts with the choice to transfer public funds to private schools. As one administrator quoted in the Southern School News noted, the new legislation provided the “freedom to give away public school buildings, give away public school equipment, give away public school sites and give away public school tax money to non-public schools.”33

  Freedom of choice was ultimately a political compromise among Whites divided on the issue of how to preserve segregation. In a campaign to spread the gospel of freedom of choice provisions in Virginia in 1958, Governor J. Lindsay Almond struck an important compromise between advocates of massive resistance—those who wanted to close public schools indefinitely—and moderates who wanted to maintain a system of public education. A rhetoric of rights and choice united extreme and moderate segregationists. The idea gained momentum when Leon Dure, a retired southern newspaper editor, began publishing his ideas in the southern press around the “freedom of choice of association.” For Dure, the Brown decision assailed Americans’ right to associate, a fundamental liberty protected by the First Amendment. His proposal was to accept the Brown decision but protect the right of individuals, irrespective of race, to “assemble and associate without restraint by law.” In obeying the decision, states could provide “freedom of choice in education” without restraint or federal oversight. Governor Almond addressed a special session of the legislature, iterating Dure’s major ideas, arguing that “the right to associate carries with it the right not to associate.”34 White
Virginians began to discuss the preservation of their rights in the impending onslaught of federal intervention. The freedom of choice plan passed by the Virginia legislature consisted of new pupil placement laws, much like those passed in Alabama, as well as public funding for tuition grants for White families seeking their children’s admission to private academies.

  The ideology behind freedom of choice rested on race-neutral rhetoric. Southerners were able to craft legislation that addressed race without explicitly naming it. The platform of the Virginia States’ Rights Party of 1956 is indicative. “It should be left to state and local governments,” it noted, “to decide how much and exactly what kind of education they are willing to support. There is no popular demand for federal control or direction of education. As a matter of fact, this invasion of states’ rights is a pure political grab for power.”35 In South Carolina, the Gressette Committee—the legislative group assigned to find the legal path to circumvent desegregation—noted, “We can dare to hope to offer to all our citizens the broadest possible freedom of choice of the kind of schools to which they wish to send their children.” The Gressette Committee went on to report in 1963 that “South Carolina at all costs must prevent the development of its grammar and high schools into the lawless ‘blackboard jungles’ that integration has made.”36 As H. Harrison Jenkins, the editor of the South Carolina-based Columbia Record, noted, “The singular important factor to remember in an acceptable freedom-of-choice program is that the child or parent has the liberty to make a choice and that the degradation of compulsory attendance at a particular school, solely because of race, is absolutely removed.”37

  Regardless of one’s race, parents had a choice under the new spate of legislation passed across the South. As Fritz Hollings of South Carolina noted on the Senate floor in 1970, “This is a freedom of choice . . . that wasn’t drafted by southern bigots or by southern illiterates or by southerners wanting to turn the clock back, or by southerners with prejudice or by southern red necks.”38 Freedom of choice allowed all families—regardless of race and without racial discrimination—to determine where to go to school. Hollings asserted, “The thrust of the 14th Amendment is that rights not be denied the individual. If the individual is given the right he chooses, then the spirit and letter of the Fourteenth Amendment is complied with.”39

  The rhetoric of choice permitted token integration while maintaining the essence of segregated schooling. While the majority of White Americans were not thrilled about the prospect of sending their sons and daughters to school with Black and Brown students, they were also not enthused about White southerners burning crosses, verbally accosting children, and physically assaulting students. Massive resistance broadcast to a national audience the racist sentiment behind the caustic rebellion of Dixie. Massive resistance was also bad for business. Black economic actions, from the Montgomery bus boycott to the boycott of five-and-dime stores across the nation, withheld capital from White “moderate segregationists” concerned with the bottom line. Meanwhile, southern legislatures wanted to prolong the postwar economic boom and federal investment in the South. Freedom of choice became a solution that segregationists could live with.

  It was federal funding coupled with a defense of the right to choose, not a moral compass, that ultimately forced the South to enroll a handful of Black students in formerly all-White schools. Through Title VI of the Civil Rights Act of 1964, President Lyndon B. Johnson threatened to cut off federal funding to institutions or persons who practiced segregation, including schools. The following year, Johnson signed into law the Elementary and Secondary Education Act, a sweeping bill that appropriated over $1 billion to public schools. The most significant part of the bill was the Title I program, in which federal dollars were directed to schools that enrolled student populations of whom 40 percent or more lived in poverty. It was Johnson’s noble attempt to win his “war on poverty” and build his Great Society. Federal funding partly filled the coffers of financially strapped school districts, including southern districts that had begun desegregating.40

  The new legislation encouraged compliance with desegregation efforts since the act outlawed discrimination based on race while simultaneously leveraging fiscal consequences to uphold the law. The stakes were high: many southern districts were poised to receive a sizable infusion of federal money. When Johnson signed the Civil Rights Act into law, eleven states of the former Confederacy received over $370 million in federal aid. After the passage of the Elementary and Secondary Education Act in 1965, southern states were projected to receive an additional $503 million. In Mississippi, federal funds were projected to account for nearly one-fifth of the education budget, making it the state most dependent on federal funds.41

  Whites began looking for opportunities to have it both ways: to separate students by race but also preserve the constant inflow of federal dollars. They did not have to look too far, as they had already crafted the language and ideology of “choice.” The rhetorical strategy drew on a positive conception of choice that was quintessentially American, the right to choose one’s own destiny, and free market ideology. Framing matters this way, White legislators insisted on the right of individuals to choose where they enrolled their children.

  Under mounting pressure to retain funding, hundreds of districts submitted evidence of desegregation. Three-fourths of the South’s nearly three thousand school districts agreed to comply with federal stipulations before the summer break in 1965, and over 90 percent had submitted plans for compliance by the time school began that fall. The state school superintendent in Florida put it succinctly when he declared to the press, “We have no choice.”42 Yet, contrary to the perception of those who felt they were giving in to desegregation mandates, defenders of segregation developed a score of “freedom of choice” plans across the South and invested in them wholeheartedly. After the Civil Rights Act, these plans presented viable means to maintain both segregation and federal funding. Whites used them to project an image of compliance with the federal mandate while at the same time maintaining control of public education for their benefit. The federal government permitted southern school districts to meet minimal standards by submitting plans stating that anyone regardless of race was free to apply to any school in their district. The burden of desegregation was thus shifted to individual Black families and framed as their choice.

  Freedom of choice plans initially met the immediate requirements established by the Office of Health, Education, and Welfare. Massive resistance, with armed guards protecting the schoolhouse door, was replaced by “choice” rhetoric and token desegregation, to the relief of the Office of Health, Education, and Welfare.

  What federal officials, liberal and conservative alike, did not see when validating freedom of choice plans, or what they chose to ignore, was the persistent harassment that Black children and their families endured after applying to enter White schools. Black families were “free to choose,” but the reality was a living hell for doing so. Freedom of choice plans looked good on paper, but they represented a watered-down compromise—compliance—far from the ideals of both sides. Such plans offered a very different sort of desegregation as that envisioned by the NAACP and activists who wanted immediate and full integration. But the law contained loopholes and opportunities to repudiate the spirit of integration once again.

  A decade of struggle between integrationist and segregationist reformers transformed the educational landscape of the US South. By 1964, at the height of the civil rights movement and the time of the Civil Rights Act passage, new choices were on the horizon for African American students. Small groups of Black students entered formerly all-White schools across the South through a bevy of freedom of choice policies. The US District Court for the Southern District of Mississippi ruled in Evers v. Jackson Municipal Separate School District (1964) that Mississippi schools had to allow Black students to enter White schools. Ten years of resisting desegregation came to an end as White schools opened their doors to a handful of Bla
ck students in Mississippi—the last state in the nation to do so. The Supreme Court also issued a clear message that same year in Griffin v. School Board of Prince Edward County, noting that “the time for more ‘deliberate speed’ has run out, and the phrase can no longer justify denying these Prince Edward County children their Constitutional rights.”43 (In Prince Edward County, Virginia, recall, public schools had been shut down since 1959.) At the end of the 1960s, the Supreme Court issued a final rebuff in its Alexander v. Holmes County (1969) decision: “Continued operation of racially segregated schools under the standard of ‘all deliberate speed’ is no longer constitutionally permissible.”44 The writing was on the wall that African American students were protected if they enrolled in all-White schools.

  As much as choice was grounded in White resistance, it also advanced the civil rights movement’s integration goal. The NAACP, the lead organization behind litigating desegregation, and supportive civil rights activists outlined the choices Black students faced, holding grassroots meetings in churches and homes across the South. Students could enroll in all-White schools, helping dismantle legal barriers and fulfilling their ancestors’ dreams, or they could remain in the segregated institutions they had always attended and were expected to attend. Choosing a well-funded White school with state-of-the-art facilities, brand-new books, impeccable science labs, safe transportation, and highly paid teachers, among other amenities, appears to be the obvious choice, yet it was extraordinarily fraught. This decision placed a tremendous burden on young people.