Our Namesake: John Ben Shepperd

I’ve just come back from Washington, where we argued segregation before the Supreme Court. As you remember, on May 17 almost a year ago the Supreme Court handed down its historic decision that racial segregation in the public schools is unconstitutional. Texans are accustomed to Federal encroachment into local affairs in taxation, commerce, natural resources, conservation, and other fields; but it comes as a shock when the Supreme Court issues an order that reads like the edict of a Federal bureau.

No other court action in many years has so vitally affected every family in Texas.

That decision resulted from five cases before the Court from the states of Virginia, South Carolina, Kansas, Delaware and the District of Columbia. It was a so-called “interim” decision—that is, it was not the final, but was what you might call the first part of a one-two punch. Even though only four states and the District of Columbia were parties to the suits, all states practicing segregation were invited by the Court to file briefs and present oral argument to implement the Court’s decision. In effect, the Court was saying, “Segregation is going out. If you’ve got anything to say, you’d better get up here and say it.”

We filed a brief, because we felt we would be derelict in our duty if we didn’t. The Texas situation is unique, and we wanted the Court to bear that in mind in laying down any kind of degree ending segregation. Too, there are several cases pending, which will place Texas before the Court as a litigant within a short time. Texas is too big to be kept warm under somebody else’s blanket. We have to have tailor-made orders or no orders at all, and naturally we prefer no orders at all.

To assume that nine fallible human beings in Washington, all of whom are appointed by one fallible human being, can solve the problems of our 2,000 Texas school districts better than our 181 Texas Legislators and 9,011 school trustees, is the idlest kind of irresponsible day-dreaming.

In our brief and our oral argument we refused to recognize that the decision applied to Texas, since we were not a party to the suits. We pointed out the great variation of local situation, local differences in population and school facilities, the attitudes of the people (both white and colored), the local autonomy of school districts, and the sheer folly of any sudden and cataclysmic change. We told the Court that our school system and its problems are so different from those of other states, and these problems so varied in themselves, that they belong in the hands of our local school authorities. Any decree issued by the Court, we argued, should recognize the paramount ability and right of local school districts to handle their own problems.

Arguing on the opposing side were counsel for the plaintiffs in the five suits and the Solicitor General of the United States, Mr. Simon E. Sobeloff. Here is what Mr. Sobeloff and the Federal Government are asking the Supreme Court to incorporate into its decree.

Local school districts must take immediate steps toward integration or show just cause for not taking them, and in the event that they fail to do either, a Federal District Court can order immediate and complete desegregation in the defending school district.

Now here is the disturbing element. Heretofore a decree entered in these five cases before the Court would have applied only to the five states involved. But the plaintiffs and the Federal Government argue that the Court should issue a broad degree containing a declaration that the constitutional and statutory provisions of the states requiring segregation are in violation of the Fourteenth Amendment and are therefore null and void. This would bring all states practicing segregation under the degree, and all school districts would be responsible to Federal District Courts for compliance.

I was frankly amazed at the Federal Government’s position that the Supreme Court’s decree should abrogate state laws. If this happens, Texas and its school system will stand pre-judged before the nation’s highest court. This decision should have no more effect on non-litigant states than any other routine opinion. But in this case, the Federal Government is asking the Court to hang states that have not even been tried.

The plaintiffs and the Federal Government took the position that Texas has been violating the law. This idea is without foundation. Texas schools have operation for 80 years under Art. VII, Section 7 of the Texas Constitution of 1876, and their operation on a segregated basis has been upheld in 77 court decisions, including at least thirteen prior decision of the U.S. Supreme Court.

The doctrine of “separate and equal” school facilities was upheld in 1896, in the landmark case of Plessy v. Ferguson. In that case a Negro named Plessy refused to occupy separate accommodations on a public conveyance as required by Louisiana State Law. The Supreme Court said:

“The object of the Fourteenth Amendment was undoubtedly to enforce the equality of the two races before the law, but . . . it could not have been intended to . . . enforce social, as distinguished from political, equality . . . Laws permitting . . . separation . . . have been generally, if not universally, recognized as within the competency of the State Legislatures. . . .” The Court held that the statute was a valid exercise of the police power of the State of Louisiana.

The first application in Texas was the Sweatt case of 1950. In that case the Court ordered the admission of Herman Sweatt to the University of Texas Law School on the grounds that Texas did not provide equal law school facilities for colored students. This amounted to an admission o the part of the Court that if facilities had been equal, segregation would have been all right. Since that decision, Texas has spent millions of dollars equalizing its facilities for Negroes.

In other cases the courts have spelled out other conditions for equality. In the Sipuel case in 1949, the Court held that the University of Oklahoma must admit a colored girl to its law school immediately, rather than delay until the state’s Negro law school was completed, because a person’s right to equal facilities was immediate and not to be delayed if the facilities were available for others.

On March 24 of last year, one week after segregation cases were decided, the Supreme Court upheld a Court of Appeals decision that colored students in the Wichita Falls Junior College district must be admitted to that junior college, on the grounds that forcing them to travel 367 miles to Prairie View or 411 miles to Texas Southern was discrimination not allowed by law.

The effect of these decision made in the last six years was this: It was not sufficient that separate and equal facilities for Negroes exist; they had to exist at the time they were wanted, they had to be equal in every respect, and they had to be reasonably as near and available as those for white students. But now the Court has declared them altogether unconstitutional.

Judging by the pattern of Supreme Court decision in the past few years, and by the Court’s questions and attitude in last week’s arguments, I must say it is later than we think. The Court is going to enter a decree, probably in May or June, and even if it is not a broad decree covering other states in addition to the five before the Court, Texas is virtually certain to be brought under it through any one of several segregation suits now in Federal Courts.

A suit against Texas Western College is now before the court in El Paso, in which the plaintiff is asking the court to strike down our constitutional and statutory provisions requiring segregation. There is a similar suit against the University of Texas and two others against Texarkana Junior College. Under certain conditions, at least two of these suits could reach the Supreme Court by next fall, if not sooner. Further, I have reason to believe that the NAACP is going to make Texas a testing ground for segregation cases under the Supreme Court’s ruling. We are likely to see much litigation sooner than we realize.

Assuming that it is in accordance with the will of the people of Texas, we should begin mapping plans for a substitute to our present system of law on segregation. If we do not have a substitute ready when it is needed, we may be forced by the courts to accept immediate integration.

Actually, we don’t know what legal alternatives, if any, the people of Texas would choose. Texans in general are reserving judgment, waiting for the final decree. But if we wait too long, our school legislation is going to be made by Federal Courts instead of our own legislators.

What we need now is an expression of policy from which we can proceed to find and evaluate our alternatives. We have to know what we want to do and what we can do before we can decide what we’re going to do. I hope the 54th Legislature will not adjourn without making a clear expression, by joint resolution, of the state’s policy in confronting the requirements of the May 17 ruling.

There are a number of plans, both suggested and in actual use in other states, for dealing with the segregation problems. In mentioning a few of these plans, I must of course make it clear that I am not advocating them, nor do I presume to advise the Legislature about them. The operation of our schools is a matter under legislative authority, and I would not attempt to usurp any part of that authority.

We are all familiar with drastic measures taken by other state legislatures. Georgia, Mississippi and South Carolina passed constitutional amendments authorizing the Legislatures to abolish the school system. Louisiana passed an amendment to preserve segregation as a police power of the state under the Tenth Amendment.

If Texas should, by any chance, follow the examples of Georgia, Mississippi, and South Carolina by authorizing the abolition of the public school system, it would be necessary to repeal Article VII, Sec. 1 of the Constitution, which makes it the duty of the Legislature to provide for a free public school system. We would also have to repeal various constitutional taxing provisions. The Legislature would then have to repeal statutes to pull the State out of various fields, such as enforcing compulsory attendance, accreditation of teachers, providing free textbooks, selecting textbooks, grading schools, furnishing transportation, or injecting tax funds into the school system in any manner through contributions to individual students or by direct aid to the school system or other individuals.

Almost any action taken by the Legislature would be in the nature of an attempt to go in one direction—“all for one and one for all.” There is an alternative under which the Legislature could, in effect, place each school district on its own two feet. The people, by repealing Article 2900 of the Constitution and some thirteen statutory provisions permitting or requiring segregation, could expunge segregation from the books. (Bear in mind that the Court and the Federal Government contend that the Fourteenth Amendment requires that the states shall not deprive any person of the equal protection of the law.)

There would then be no cause to question the policies of the State, but local school districts would be on their own. Litigation would be a local headache, but local headaches can best be prevented and cured on the local level, where school trustees meet more white and colored citizens on their way to a board meeting than judges meet in a month. This system would permit integration wherever it was wanted.

An example of what has been done under this type of policy is the Phoenix Plan. Two years ago, when segregation was abolished in Arizona, the school in Phoenix announced that the same white and colored teaching staffs would be retained in their respective schools. When the schools were opened, students were allowed to attend whichever school their parents chose. Ninety-five percent of the students stayed with their old schools. There was only a five percent movement of colored children into white schools.

Other plans are also possible under this legislative policy of complete local administration, or “every many for himself.” A triple-school system has been mentioned, under which parents would have a choice of sending their children to an all white school, an all colored school, or an integrated school. The District of Columbia and the city of Topeka, Kansas, have been using an option system which, in effect, is a triple school arrangement and is tantamount to segregation in specific districts. Parents may choose to send their children to school in the zone of their residence, or in the zone where they attended the previous two years. Since the schools were segregated the previous two years, and since colored facilities do not easily move into white school districts, the effect is to keep the schools segregated.

A plan has also been suggested that school children be segregated on a basis of sex—boys in one school, girls in another. Supreme Court Justice Black said from the bench that the Supreme Court has always held that segregation by sex was a reasonable classification.

Frankly, we don’t know how any of these plans and states’ actions will ultimately be dealt with by the courts. There have been many cases in which states have attempted to circumvent court orders without success.

For example, in 1944, when the Court held that Negroes cannot be excluded from party primaries, South Carolina tried to get around the decision by separating the primary from the state. The Court then held that a primary election is a part of the state’s election process and cannot be separated from it. The lawbooks are full of similar cases.

Undoubtedly, Congress will have to assume its share of the responsibility. It can either implement the Supreme Court’s decision or it can remove public education completely from the appellate jurisdiction of the Supreme Court. This latter alternative is now before Congress in the form of a bill which would take public education completely out of the hands of the Supreme Court.

You can readily see what a vast and complex problem the May 17 decision has laid on the states. The solution lies somewhere between Congress and the local school board. But barring a solution above the state level, which isn’t likely, considering the present composition of the Supreme Court and the political philosophy of too many members of Congress, it is the State Legislatures which will have to act first.

Because of this great complexity, and because the Texas Legislature cannot study the problem and act on it decisively in the remaining weeks of this session, I have recommended the establishment of a fifteen-member Legislature Advisory Committee on Education, to be composed of five members of the Senate, five members of the House, and five citizens appointed by the Governor. This committee would study the problem of segregation and the school laws of Texas and other states, recommend possible courses of action, formulate a plan of legislation, and if necessary draft laws. It would be an interim committee, working between sessions, retaining the best school lawyers and making legal counsel available to schools districts involved in legislation.

Such a committee might obviate the necessity of a special session of the Legislature following the issuance of a Supreme Court decree, and would undoubtedly shorten a session if it became necessary to have one. It would be good from an economy standpoint, not to mention the invaluable services it could render. Many of the seventeen states practicing segregation have already established a similar committee.

I recommend this committee in answer to an inquiry from a number of Legislators as to what the Legislature can do now. I pointed out that no constitutional amendments dealing with public education, or any other subject, could be considered at a special session if one should be called after the Supreme Court issues its final decree.

Texas is perfectly capable of writing and amending its school laws, and we don’t want Federal courts to do it. We don’t want local taxation to be skyrocketed by the necessity of building new facilities overnight. We don’t want school children going home with bloody noses because of being forced to do what they didn’t want to do, and having to say, “Mama, I exercised my constitutional rights until recess.” Why isn’t anybody worried about the psychological shock of integration on children?

We should proceed intelligently, with confidence in the present integrity and value of our school system, of which our white and colored citizens alike may be proud. Almost 80% of our colored citizens of school age are in school on an average day. No other state can match that percentage. Ninety-seven percent of our teachers have college degrees. We have 8500 Negro teachers and administrators, which is equal to the number in 31 northern and western states that practice non-segregation. In those states only one teacher in 73 is a Negro, but in Texas one out of five is colored. I don’t believe this system is anything to be ashamed of before the Supreme Court, or before the world.

Nevertheless, facing the Supreme Court is very often like having a fatal accident. You may be in the right, but you’re just as dead as if you were wrong. We have better begin planning for any eventuality and had better be ready to meet it.

Our argument before the Supreme Court was summed up in eight words: “It is our problem. Let us solve it.” Even though we had no problem at all until it was imposed on us by the Court, we now have one and must solve it ourselves, or those nine men are going to solve it for us in a manner we may not like. We can solve it without the high paid lawyers and agitators and public relations counselors of the NAACP. We have never had any trouble with our Negro people, and we haven’t had any problems that we couldn’t sit down and work out with them and this will be no exception.

This is a question that needs the thought and prayer of every Texan. I know you will give it yours, and I assure you it is receiving mine. Texas has never yet faced a situation it couldn’t cope with, and I am trusting in our ability to meet this one. As I told the Supreme Court, Texans can decide moral issues without outside help, and will always work with diligence, with prayer, and with conscience before God, to bring enlightenment, understanding and well-being to all our people.

Please note: The views expressed in these speeches were those of John Ben Shepperd, and do not necessarily represent the views of the John Ben Shepperd Public Leadership Institute or the University of Texas Permian Basin.