this was inadequate unless transfers of black students to white schools were permitted before that
date.153 On appeal, the decision was affirmed as within the discretion of the trial judge. Slade v.
Bd of Ed of Harford County.154

Back in St. Marys county, the board of education refused to allow the transfer of two
children from black schools into an all white high school. The board relied on its plan of gradual
integration that would not begin high school integration until the following year. Judge Thomsen
held that the plan of the board was adequate, but that the rights of the plaintiff were personal. He
found that admission of the plaintiffs children to the 10th and 12th grades respectively did not
pose any serious problem to the operation of the school system and ordered the board to accept
their applications for transfer. Groves v. Bd. of Ed. of St. Marys County.155 His decision was
affirmed by the Fourth Circuit.156

The plan in many counties did not even provide for gradual integration. Many counties
simply continued to assign children to schools by race, but permitted a child to apply to transfer
to another school. By 1961 there were still no black children enrolled in white schools in
Calvert, Worcester, Somerset, Kent, Queen Anne's, Dorcester, Wicomico and Caroline County
schools. Under the "freedom of choice" plans in force there, no plaintiffs sued. White children
had little reason to request transfers and a black child whose parents requested a transfer to a
white school would face a classroom charged with prejudice in a segregated society as the only
black in the school. Not only did parents fear for their children, they feared as well for
themselves and the possibility that some form of reprisal might be taken against them for daring
to cross the line.157 Thus even in a moderate state which did not engage in "massive resistance,"
desegregation of the schools after Brown was a slow process.158

C.        The Attack on Discriminatory Behavior of Non-Governmental Institutions
1.         The Problem of State Action

Brown and its progeny had held that segregation and discrimination by the government
violated the fourteenth amendment, but non-governmental actors were free to continue to
discriminate. The next stage of legal attack was to attempt to link the behavior of private entities
with the state. One line of reasoning was to argue that real estate developers were bound by the
limits on the state because they relied upon state agencies for agreements to extend sewer and
water lines that enabled them to create their subdivisions. This was the theory proposed by
attorney Charles P. Howard in Hackley v. Art Builders, Inc.159 Plaintiff, a civilian employee of
the military, sued a real estate developer for housing discrimination, joining the Metropolitan
Sanitary Commission for providing sewer lines to a subdivision which segregated. The court
found that the provision of normal public services did not make the state responsible for the
discrimination practiced by the persons benefitting from those services, and, consequently, it
dismissed the suit.

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