Prof. Hardy Cross Dillard
Several months ago I wrote a lengthy post on an intriguing historical discovery. In March 1959, Charlottesville, Virginia school board attorney John S. Battle, Jr. laid out a case that school vouchers posed an existential threat to racially segregated schooling.
Battle was an outspoken segregationist and member of the Virginia political elite. His father served as Governor of Virginia from 1950 to 1954, and his own connections extended deep into the political machine of U.S. Sen. Harry Flood Byrd, Sr. After the 1954 Brown v. Board of Education ruling, Battle became one of the preeminant anti-integration litigators in the commonwealth. From 1957 to the mid-1960s he was the lead counsel for the defense on dozens of school integration legal proceedings, facing off against the NAACP’s Oliver Hill.
The voucher issue entered the fray in January 1959 following simultaneous state and federal court rulings that struck down key parts of Byrd’s segregationist “Massive Resistance” laws. These measures attempted to circumvent Brown by allowing the state government to take control of and close any public school facing federal court-ordered integration. In the fall semester of 1958, the state closed public schools in three locales facing integration, including Venable Elementary School and Lane High School in Charlottesville. Although the court strike-downs of January 19, 1959 came from cases in other counties, Battle was the lead attorney for the segregationist side in the two Charlottesville schools.
With the simultaneous court defeats of the school closure laws, Battle turned to desperate measures to preserve the all-white schools. The Charlottesville school board convened an emergency meeting on January 26 at his law office to plan their next step and find a new way to salvage what they could of the segregationist status quo. School officials believed that they could technically comply with Brown by acquiescing to the admission of black students to the two schools in question. Battle’s plan sought to keep these numbers to the barest minimum though with a two-pronged approach. First, the school board would adopt a zoning map that intentionally assigned black neighborhoods to the existing all-black schools. Second, Venable and Lane – the white schools facing integration – would now have their enrollment strictly capped at capacity. Even if they got past the zoning map hurdle, most black students could not enroll because there weren’t enough seats in the classrooms to take them. If these de facto segregationist measures worked as intended, Battle predicted that less than a dozen black students would be able to actually enroll at the schools in question.
The history of the voucher movement involves complex and overlapping political coalitions. After the court rulings, Byrd urged his allies to continue the fight by forcing a showdown with the federal courts and keeping the schools closed. Hardline segregationist “Massive Resisters” in the assembly agreed to hold the line, although this also meant foregoing another semester of public education if not longer in the affected locations (with white students, of course, being taught at private “segregation academies” in the interim). Despite Byrd’s signals to his allies, the court rulings exposed a crack in the Democratic Party’s political coalition. School closures made many parents and business-minded legislators uneasy, even if they still conceptually favored segregation. To get the schools open again they had to outflank the “Massive Resisters” by breaking the previous majorities that led to the school closure laws.
Enter Leon Dure, a voucher activist living in Keswick just outside of Charlottesville. In 1958 at the outset of the school closures, Dure published a newspaper ad arguing that vouchers could be used to reopen schools facing court-ordered integration by offering a “safety valve” in which parents who wished to do so could move their children to other schools – public or private – on a state-funded tuition grant, or voucher. Dure’s plan came with an important legal twist though – in order to pass muster with the federal courts under Brown, the vouchers had to be made available to anyone for any reason – including non-segregationist uses.
In mid February 1959, a coalition of political moderates on both sides of the segregation debate began to coalesce around the Dure plan. The program emerged from the legislative recommendations of the Perrow Commission, a special joint committee of 40 legislators tasked with revising the state’s education statutes after the court rulings. The voucher program passed in April with its support mainly coming from the political center. As a result, the schools would reopen against the wishes of the “massive resisters,” the federal court ordered integration could proceed, and any objecting parents could now use a voucher to move their children to another school (although so could any parent for any other reason).
Back in Charlottesville, Battle recognized the state voucher program as an Achilles heal to his legal strategy. If white students left Venable or Lane for any reason, it would free up a seat in their classrooms that could then be filled by black students backed with a court order. Battle called this pattern the “negro engulfment” of the public schools and predicted that if it occurred, a vicious cycle of white student transfers would begin thereby defeating his backdoor strategy of preserving segregaton with zoning and enrollment caps. In short order, the schools would experience full scale integration.
In a parallel twist, the local public school political interests – teachers unions, education bureaucrats, and their political supporters – recognized the vouchers as a threat to public education funding, much as these same interests do today. These conditions created a peculiar political alliance that has gone almost entirely unnoticed in the historical literature on desegregation. As the Perrow Commission debated the Dure plan, the school savers in Charlottesville mobilized with the segregationists in a desperate attempt to kill off vouchers.
The “negro engulfment” argument caught the attention of one local school saver very early into the Perrow Commission proceedings. Hardy Cross Dillard, a UVA law professor, also served as the legal advisor to the Charlottesville Committee for Public Education (CPE), a mostly progressive-leaning group of public school interests that formed to counter the school closure policy of the Massive Resistance laws. The CPE officially took no formal stance on segregation – its literature stressed a desire to reopen the schools, whether integrated or not. Enough of its members agreed in principle with racial separation though that they were willing to form an alliance with Battle and the segregationists.
Dillard himself is probably best understood as a moderate segregationist who believed in separate schooling but also recognized the constitutional validity of Brown and saw some form of integration as inevitable. His political aims therefore sought to slow the process on the grounds that the alleged “negro engulfment” would lower the quality of schools. He was also a voucher skeptic, and maintained a friendly but interlocutory back-and-forth with Dure over the course of several years. He was also well connected on the local political scene, and percieved as an authoritative legal voice on constitutional questions in Richmond – including segregation. To this end, Dillard directed the attention of the state’s attorney general Albertis Harrison to another contemporary federal district court ruling from Alabama, Shuttlesworth v. Board of Education. The court in this case upheld a narrow construction of an Alabama pupil placement system that allowed local officials to essentially restrict, but not completely block, the progress of integration.
As Dillard explained in a letter dated January 26 – the same day as the emergency Charlottesville school board meeting that mapped out Battle’s plan – Shuttlesworth’s “utility for postponing indefinitely any engulfment is quite real…as I read Shuttlesworth, numbers are definitely controllable. By this I mean that whereas 1 or 2 negroes might not affect the prevailing academic standards, a larger number might.” This was essentially the legal theory on which the Charlottesville school district’s plan could be presented to the courts, even as it conceded some limited integration.
While Battle filed his plan without stating a racial purpose, his public facing comments left no doubt where he stood. Newspapers across the state ran excerpts of two of Battle’s speeches on the “engulfment” threat – one to a Charlottesville PTA meeting on March 23, and a second to a school board meeting in Lynchburg a month later (for more on their contents see my earlier post here). Battle’s comments even offered other southern states a strategy to fight integration, provided that they could resist the temptations of school choice. A newspaper as far away as Hattiesburg, Mississippi quoted Battle’s warning of an “exodus” of white children from the public school system, if permitted by a voucher scheme, leaving the remainder in the hands of the integrationists.
On the local level, Dillard added his own studied opinion of law to the case. “Mr. Dure’s plan should be rechristened,” he explained at a public debate over vouchers in Charlottesville on March 26. “He is not talking about the right of association. He is talking about the right of disassociation at public expense.” Dillard was trying to block the voucher threat to public school finance, but in the process he simultaneously assured his audience that “the best way out of our dilemma lies in a good faith, rationally administered [pupil] assignment plan.” This prescription conveniently mirrored Battle. Or as Dillard continued, it was “the surest way to preserve our public school system while avoiding the threat and actuality of engulfment.”
Pleadings of this type were not mere rhetoric either. In addition to shaping segregationist policy through Battle’s enrollment cap and pupil zoning schemes, they also gained a friendly audience in Richmond in Del. Robert Whitehead, a Perrow Commission member and voucher skeptic from a neighboring county. Whitehead was a peculiar political creature – a public schools champion whose support for segregated classrooms almost matched his hatred for the Massive Resisters on the grounds that the threatened public education with the school closure stunt.
Dillard wrote Whitehead shortly after his own speech at the school saver’s event to explain the logic of the “negro engulfment” argument. Although the law professor acknowledged the validity of Brown and even encouraged Whitehead to acquiesce to limited integration, he called his attention to “John Battle Jr., [who] has made a big point…viz. that setting up a competing “private” school system would accelerate engulfment by making it more difficult to administer a student assignment plan.”
The Charlottesville CPE similarly took up Battle’s message, paying to reprint one of his speeches as a leaflet and disseminating thousands of copies to local residents by mail. Although they remained nominally noncommital to either side of the segregation issue provided that they could secure school funding and end the closure policy, the group also recognized immense PR value in tapping into segregationist voter sentiments. An internal strategy memorandum from around the time of Battle’s speeches reveals a conscious effort to strike an alliance with the segregationists. The memo warned of the publicity received by Dure’s “freedom of choice” plan and suggested it was an illusory solution to segregationists. Instead, the CPE should highlight the:
“Other side of the picture – What happens if many children leave public schools for tuition supported private schools and the latter are declared unconstitutional? Great publicity has been given to the possibility of private state-supported schools. No publicity has been given to the possibility of containing integration, as outlined by John Battle, Jr.”
The memo laid out a three-pronged plan to capture segregationist sentiments. First, they would launch a publicity campaign to promote public schooling over private alternatives through radio ads and op-eds in the Charlottesville Daily Progress. Second, and crucially, they would adopt a new message of “holding integration to the barest minimum possible,” apparently using the strategy advanced by Battle. Third, they would pressure community leaders to publicly declare their own patronage of the public school system. A bullet point on the memo hints the group even entertained the idea of targeting any parents who applied for a voucher by using the “influence of employers.”
In the end, Battle’s strategy, the CPE campaign to promote it, and the support given to it by Dillard and Whitehead proved insufficient to derail the Perrow Commission’s tuition grant plank in Richmond. It passed with moderate segregationist support from parents and politicians who wanted the option to withdraw their kids from integrated schools, but the race neutrality of the statute – required to pass court muster – also made it available to other non-segregationist uses such as geography, school quality, and even a desire to transfer from segregated to integrated school districts. In fact, statistical evidence after a few years of operation would show that segregationist users of the voucher system were in a distinct minority.
On the day of the formal vote, Whitehead acquiesced to the Perrow Commission report as a package deal to ensure the schools would reopen and remain so. He immediately turned on the voucher component and set out to restrict its use, giving a widely circulated speech at a CPE event in mid-May where he echoed all of Battle’s talking points.
Curiously enough, Battle’s segregationist strategy continued to bear fruits in Virginia politics for the next several years. In late April 1959, the head of the Virginia Education Association (the still-segregated and all white public school teacher’s union) printed and circulated a copy of Battle’s speech to every public school superintendent in the state. In the following months the VEA mobilized as state’s most prominent critic of the new voucher program – and did so on explicitly segregationist grounds. Ignoring the law’s plainly written and constitutionally necessary race neutral scope, the organization spent the next five years lobbying the state government to restrict the program to segregationist uses only.
It was this same line of segregationist anti-voucher agitation from VEA union officials that the Thomas Jefferson Center for Political Economy singled out and rebutted in a 1964 report on the performance of the voucher program after five years. The academic who supervised that report, of course, was James M. Buchanan.