Alabama State Teachers Association v. Alabama Public School and College Authority/Dissent Douglas

Mr. Justice DOUGLAS, dissenting.

If my Brother HARLAN is correct and this is a local, as distinguished from a state-wide, law, a question not requiring a three-judge court (Moody v. Flowers, 387 U.S. 97, 87 S.Ct. 1544, 18 L.Ed.2d 643), then we have been woefully wrong in other school integration cases. For they have almost always involved a single public school, which unually is wholly local in its operation. But in those other three-judge court cases we dealt with the operation of a state-wide racial segregation regime. The present Act (Ala.Acts 1967, No. 403) regulates a state agency, the Alabama Public School and College Authority, which issues and sells bonds. And these bonds, so the case tells us, are sold to construct what threatens to become an all-white university.

Can we say in 1969 that a State has no duty to disestablish a dual system of higher education based upon race? The three-judge court in a careful opinion seems to draw a line between elementary and secondary schools on one hand and colleges and universities on the other. The inference is that if this were an elementary school, the result would be different.

The problem is in effect a phase of 'freedom of choice' which was before us in another aspect in Green v. County School Board, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716.

I would note probable jurisdiction and set the case for argument.