The US Supreme Court ruled in Brown v. Board of Education of Topeka on May 17, 1954 that schools had to be desegregated. Consolidated with the case was Davis v. Prince Edward County, Virginia, filed after Barbara Johns led a 1951 student walkout at Robert Russa Moton High School in Farmville.
The Byrd Organization was opposed to integrating Virginia schools, but unclear initially on how to respond. Governor Stanley appointed the Governor's Select Committee on Public Education in 1954, which State Senator Garland Gray chaired. Initial proposals were released in January 1955 which might allow for token integration of schools, but Governor Stanley and the regular session of the General Assembly did not formulate a statewide response to the 1954 Brown v. Board of Education decision.
That changed when the US Supreme Court issued Brown v. Board of Education of Topeka II on May 31, 1955, after the regular General Assembly session had ended. Brown I had established the fundamental principle that segregation was a denial of the equal protection of the laws, and that racial discrimination in public education was unconstitutional. Brown I in 1954 did not address how to provide relief to the plaintiffs, but Brown II in 1955 called for desegregation of schools "with all deliberate speed."
White leaders who opposed desegregation began to plan for private, all-white schools as an alternative to the public schools. Under the laws and court opinions in the 1950's, before passage of civil rights legislation and later court rulings in the 1960's, such "segregation academies" were private rather than public organizations - and private organizations could discriminate based on race.
The largest organization opposed to desegregation, the Defenders of State Sovereignty and Individual Liberties, proposed three weeks after the Brown II decision in 1955 that Governor Thomas Stanley call a special session of the General Assembly to vote on amendments to the state constitution. Three sections in the state constitution were key:1
The Defenders sought changes so the state constitution would allow public schools to be closed rather than integrated. Privatizing the school system had been proposed by economist Milton Friedman in 1955. Though he declared opposition to segregation and racial prejudice, he supported "public choice." His proposal for eliminating the public school system, and allowing states to fund private all-white schools which would be separate and not equal, offered a clear alternative to desegregating it.
The Defenders of State Sovereignty and Individual Liberties also wanted to ensure that no state funding would be provided to any integrated school, and that state funding could be provided to private schools. The changes would allow whites to benefit from public taxes without having to attend public schools, and to force the closure of any public school that was forced into even token desegregation. That was expected to deter blacks from applying to attend a "white" school, since admittance would trigger a local jurisdiction to close its all-black and all-white schools.
The plan was to give state tuition grants just to white families. Discrimination in the allocation of state funding would ensure that the black community would not be able to support private schools, comparable to the white segregation academies. As the Defenders put it:2
The plan for amending the state constitution required quick action by Governor Stanley and the General Assembly. The Defenders feared that desegregation at "all deliberate speed" would be mandated by Federal courts for the 1956-57 school year. The group wanted to authorize state funding for private schools before any white child was required to enter a desegregated school.
The Defenders understood that if the General Assembly passed amendments in a special 1955 session and again in the 1956 regular session (with an election in-between), voters could ratify those amendments in 1956. Under the amended constitution, local jurisdictions could close all of their public schools starting with the 1956-57 school year.
Without state-funded tuition grants, white residents would have to pay 100% of the costs of their new segregation academies in local jurisdictions which stopped funding public schools. With tuition grants, what the Defenders called "mongrelization" could be avoided.3
Governor Stanley did not call a special session in 1955. He chose to wait until getting a final report from the Gray Commission, which was released on November 11, 1955.
The "Gray Commission" proposed a Pupil Placement Plan that would allow local school boards to assign children to schools based on nebulous criteria. The plan was designed so many all-white schools could be perpetuated by administrative decisions based on maintenance of safe and "efficient" school operations, but some black children might be admitted to some white schools. Private schools had already begun to integrate, with all deliberate speed.
To avoid a violation of the 14th Amendment in the US Constitution, placement would be based on criteria other than just the race of the students:4
The Gray Commission also proposed on November 11, 1955 that state funds be allocated to private schools, and that:5
However, the plan to grant tuition grants by the state to private schools required changing Virginia's constitution. Just four days before the Gray Commission issued its report, the Virginia Supreme Court of Appeals ruled in Almond v. Day that the state constitution prohibited the use of state funds for non-public schools.
The Almond v. Day case was totally separate from the Brown v. Board of Education issues involving racial discrimination; it involved church-state separation questions.
The General Assembly had approved funding for children of Virginia citizens who had died or been disabled in military service, allowing the children to attend schools of their choice. The law was designed to benefit veterans of World War II and even World War I, similar to the post-World War II GI Bill passed by the US Congress to help veterans to attend college.
Federal law allowed students to use the GIS Bill to attend colleges and universities associated with religious organizations, such as the University of Notre Dame or Hampden-Sydney College. Virginia's General Assembly has less flexibility, because Virginia's state constitution was more restrictive.
After the Civil War, Catholics had established parochial schools which taught Catholic theology because the public schools were dominated by Protestants. For example, in public schools the readings from the Bible were typically from the King James Version. In response to the concerns of the majority of Protestant voters that some taxes would support education in Catholic schools, Rep. James Blaine proposed an amendment to the US Constitution to block states from supporting religious schools. The US Senate rejected the proposed amendment, but 29 states added "Blaine Amendments" prohibiting state support for non-public (i.e., Catholic/sectarian) schools to their state constitutions by 1890.6
In Virginia, the 1901-1902 convention responded by including Section 141 in the Virginia constitution to limit state funding to just the public schools controlled by the State or some political subdivision. (The 1870 constitution had mandated creation of Virginia's first statewide system of free public schools, but was silent on whether Catholic or other religious schools could receive funding.) In Almond v. Day, the Virginia Supreme Court of Appeals ruled that the tuition grants for children of veterans would provide a direct benefit to religious schools, and that was a violation of the required separation of church and state in the Virginia constitution.
Any desegregation in any public school was unacceptable to the Defenders and the Byrd Organization. Virginia's top political leaders rejected the option provided by the Gray Commission for token desegregation and developed a "Massive Resistance" approach. The editor of the Richmond News-Leader, James J. Kilpatrick, published editorials advocating for "interposition" of state authority to block what he claimed was an unconstitutional extension of Federal authority.
The Almond v. Day decision reduced the options of the Byrd Organization to support all-white private schools as an alternative to public school system. The Gray Commission's tuition grant proposal would not be legal according to the interpretation of the existing state constitution by the Virginia Supreme Court of Appeals, but state grants for tuition at private schools were essential. Most white parents could not afford to pay to send their white children to private schools; the creation of enough all-white segregation academies to replace the white-only public schools was feasible only if state funding was provided.7
By the time of the Almond v. Day decision and the report of the Gray Commission, it was too late to modify the state constitution through the amendment process to authorize tuition vouchers for the 1956-57 school year. That approach required approval of an amendment by two sessions of the General Assembly with a state election in-between the sessions, so the earliest tuition grants could be made legal via an amendment would be for the 1958-59 school year.
The Byrd organization opted for the alternative process for constitutional revision that allowed for a faster change: hold a convention with a limited mandate to revise only a portion of the state constitution. The same limited convention process had been used in 1945 to expand the ability of people serving the military to vote in local/state elections.
Governor Stanley called for a special General Assembly session to meet in December, 1955. It endorsed holding a limited constitutional convention to revise Section 141 quickly, without having to go through the two-year constitutional amendment process. Virginia voters approved such a convention in a January 9, 1956 vote. In a special election on February 21, 40 delegates were elected.
The 1956 convention met on March 5-7. In a unanimous vote, it quickly proclaimed a revision in the state constitution to allow state funding to go to non-sectarian private schools via tuition vouchers. There was no ratification by Virginia voters.8
The 1956 limited constitutional convention changed the Virginia constitution to say:9
The General Assembly met in a special 1956 session to limit the potential that white students might have to share classrooms with black students. Byrd Organization leaders feared that a local school board might use the Pupil Placement Plan proposed by the Gray Commission to allow token desegregation, so Gov. Thomas Stanley prepared the Stanley Plan. The General Assembly passed new state laws to create a state Pupil Placement Board, and to force the closure of any public school to which a black student had been assigned by a Federal judge. The legislators assumed that their laws to force school closures were legal under the state's constitution.
The legislature authorized state and local school districts to finance vouchers if a student had been assigned to an integrated school, with each voucher limited to the cost of educating a child in the local public schools. Only white families were expected to use the state grants to pay for private school tuition. Black parents were committed to getting access to the relatively well-funded public schools that were being operated exclusively for white children. Significant financial resources beyond the tuition grants would be required to build and operate new schools, and black parents were not interested in using personal funds to establish a separate (and not equal) set of private schools for their children.
In September 1957, a Federal judge determined that "all deliberate speed" required integration of Central High School in Little Rock, Arkansas. When Federal judges ordered white schools in Warren County, Charlottesville, and Norfolk to enroll black students in September, 1958, the state forced the schools to close instead. Virginia's K-12 public schools stayed 100% segregated until early 1959.
On January 19, 1959, the Virginia Supreme Court of Appeals ruled that the General Assembly's 1956 mandate, under the Stanley Plan of Massive Resistance to force the closure of any school ordered to desegregate, violated the state constitution. The 1956 assumption by the legislators, that forcing the total closure of some schools in some jurisdictions was legal under the state constitution, was upended by that state court decision. The same day, the U.S. District Court for the Eastern District of Virginia ruled that the state-mandated school closings violated the Fourteenth Amendment to the Constitution of the United States.10
The Virginia Supreme Court of Appeals did rule later that Section 129 ("The General Assembly shall establish and maintain an efficient system of public free schools throughout the State") did not require every local jurisdiction to maintain public schools. Federal and state courts made clear in 1959 that the state could not force closure of schools, but local officials had the option to shut down all funding for the public schools within their locality. Without local funding, no state funding could be provided for local schools.
After the state and Federal courts forced the re-opening of schools in Warren County, Charlottesville, and Norfolk, new Governor J. Lindsay Almond created the Perrow Commission to determine how to proceed. It considered another revision in the state constitution to allow privatization of the public school system. If adopted, public school buildings could be sold and lawyers supporting the Massive Resistance effort could argue that no discrimination was occurring because no students were receiving a public education.
The Perrow Commission rejected the proposal. The editor of the Richmond News Leader, J. J. Kilpatrick, published a long report by two economists endorsing privatization and altering the mandate in the state constitution to maintain a system of taxpayer-funded public schools. However, the House of Delegates followed the path of the Perrow Commission and refused to sacrifice the public education system in order to protect the Byrd Organization's claim that there was a state's right to segregate the races. No constitutional convention was called to revise the Virginia constitution and allow statewide school privatization.
The interpretation of Section 129 of the state constitution that a local jurisdiction was not obliged to fund a school system allowed Prince Edward County to totally close its public school system in 1959. That was packaged as a local decision to close both the white and black schools, and closure was not a requirement mandated by the state. Prince Edward County kept all of its public schools closed for five years, until a Federal court forced the county to reopen them in 1964.
During 1959-1964, state tuition grants and tax credits helped finance the whites-only Prince Edward Academy. That school admitted its first black student only in 1986 in order to maintain its non-profit status. Its current name, the Fuqua School, was adopted after a donor gave it $10 million in 1993.11
The US Supreme Court forced Prince Edward County to re-open the public schools on May 25, 1964. It ruled in Griffin v. County School Board of Prince Edward County:12
The 1964 Federal court decision in Griffin v. County School Board of Prince Edward County did not force an end to the Virginia tuition grant program, as authorized by the 1956 revision of the state constitution. The General Assembly had expanded access to grants, under the "Perrow Plan" passed in 1959, to black as well as white students.
In 1965, the US District Court for the Eastern District of Virginia ruled in Griffin v. State Board of Education that the tuition grants were constitutionally allowed when used for attending a private, segregated, non-sectarian school, so long as the funding did not provide the "whole or the greater part of the cost of operation of a segregated school."
In 1968, however, the US Supreme Court set a new standard that brought an end to Virginia's original tuition grant program, which had been authorized by the limited convention's revision of the Virginia constitution in 1956. The US Supreme Court ruled that state support to maintain public school racial segregation was unconstitutional, invalidating Louisiana and South Carolina tuition programs that funded students attending whites-only private schools.
The US District Court for the Eastern District of Virginia then determined that the Virginia tuition grant program must stop at the end of the 1968-1969 school year.13
In 1968, prior to the US District Court decision banning tuition grants, the General Assembly had authorized a Commission on Constitutional Revision to propose substantial revisions to the state constitution. A special session of the General Assembly in 1969 eliminated the 1956 language that authorized state grants for students attending non-public schools. One amendment still would authorize state tuition grants, but just for disabled children to attend private, church-related schools.
That proposed amendment was expected to be controversial, and the 1970 General Assembly feared it might threaten voter approval of the other amendments being proposed to substantially revise the state constitution. The 1970 General Assembly rejected the state tuition grant proposal, so it was not part of the package of revisions approved in two separate sessions and approved to the voters later that year.14
After the voters endorsed all the proposed amendments to the new state constitution, the 1971 version included a clear prohibition of tuition grants for K-12 students to attend private schools:15
The 1971 constitution did authorize state tuition loans for students pursuing higher education after graduating from high school. Students attending colleges associated with a religious denomination were eligible for tuition grants, so long as the education program was not focused on religious studies or training ministers. That provision mimicked the GI Bill, and excluded loans for attending K-12 schools.
Article VIII, Section 11 was amended in 1974 to authorize grants as well as loans for higher education. The current state constitution now includes:16