Off the Streets

The Battle of Alabama moved off the streets and into the courts--at least for a while.

Of all silly things, the Birmingham school board, right in the middle of a lull in the city's race conflict, announced that it was expelling or suspending the 1,081 Negro pupils who had been arrested during recent civil rights demonstrations.

The National Association for the Advancement of Colored People promptly brought a test case before U.S. District Judge Clarence W. Allgood. From the moment the hearing started, there was never any doubt about where Allgood, a Kennedy appointee in 1961, stood. Said he: "This court was shocked to see hundreds of schoolchildren, ranging from six to 16, running loose and without direction over the streets of Birmingham and in the business establishments." Allgood upheld the Birmingham school board.

Within six hours, Negro attorneys had sued for a restraining order against the school board in the Fifth Circuit Court of Appeals in Atlanta, and Chief Judge Elbert Tuttle was hearing the plea. Tuttle, an Eisenhower appointee in 1954, administered a stinging, if indirect, rebuke to Allgood. "It's perfectly shocking to me," said he, "to learn that any board of education, having the responsibility of educating children would think that under circumstances such as these, they could achieve the results that they were elected for by knocking out 500 student-years of study." Tuttle reversed Allgood's decision, and Birmingham's Negro kids went back to their segregated schools.

Open & Shut. Next day Birmingham's segregationists got an even tougher court setback. Four members of the Alabama Supreme Court settled a fight between two contending Birmingham city governments, voted unanimously to seat recently elected Mayor Albert Boutwell, 58, and his nine-man city council. Removed from office were incumbent segregationist Mayor Arthur Hanes and Public Safety Commissioner Theophilus Eugene ("Bull") Connor, that symbol of artistry in the use of the fire hose and police dog. With Connor and his crew out of the way, Mayor Boutwell promised to "move immediately with decisive action to begin working out the problems that face the city."

Would Boutwell, a segregationist who seems mild only in comparison with Hanes and Connor, be willing to talk to Negro leaders? Replied he: "In my more than 20 years holding some type of office, my doors have always been open." Would that policy extend to Negro Leader Martin Luther King Jr.? In a word, said Boutwell, no.

As if the other legal decisions against Alabama segregation were not enough, a U.S. district court in Birmingham ruled that the University of Alabama must accept two Negro applicants for the beginning of the summer session starting June 10. One is a girl, Vivian J. Malone, 20, who plans to go to the main university campus at Tuscaloosa. The other is David M. McGlathery, 26, a mathematician who had petitioned for postgraduate study at the university's Huntsville branch. Alabama's Governor George Wallace immediately announced that the Negroes would get into either Tuscaloosa or Huntsville only by walking over his body. Cried he: "I'm going to be wherever any Negro attempts to enter the University of Alabama. I might be in both places at the same time." This did not sit well even with some other Alabama Democratic politicians. Protested Attorney General Richmond Flowers: "When the Governor stands in defiance of federal authority, he encourages others to join him--and that brings on racial violence. If federal troops are used in the state of Alabama, those who defied the courts and provoked violence would be to blame."

Beyond the Law? To forestall this possibility, the U.S. Justice Department last week filed a complaint against Wallace in Birmingham's Federal Court, asked for an injunction prohibiting Wallace from carrying out his threat. Federal Judge Seybourn H. Lynne ordered Wallace to appear before him on June 3 to show cause why an injunction should not be issued to prevent him from blocking the Negroes at the university. Said Attorney General Robert Kennedy: "We are prepared to abide by the court's decision, and we would hope and expect that Governor Wallace will do the same."

Yet the courts, unfortunate as it is, can only go so far--a fact expressed last week by Jesuit Theologian John Courtney Murray (TIME cover, Dec. 12, 1960), speaking in Manhattan. "The victory of the law," said Father Murray, "only raises a further and more profound issue for the social conscience of our country. When the limits of law have been reached as they have, the whole issue, in all its subtlety of reach, is inescapably presented to the higher tribunal of conscience."

Conscience failing, the Battle of Alabama seems likely to move back into the streets before it is over.

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