May 15, 1974
Page 14913
Mr. MUSKIE. Mr. President, it has been 20 years since the historic decision in Brown against Board of Education – 20 years since the Supreme Court gave the promise of equal educational opportunity for all Americans.
And in 20 years, that promise has still not been fulfilled. Our courts have struggled to give it life.
The struggle has brought slow progress, and deep pain, to America. But it is a struggle mandated by our commitment to the ideals of liberty and equality rooted in the Constitution.
The measure before the Senate today – the so-called anti-busing amendment – represents a denial of that commitment, a denial of the 20-year-old promise of equal educational opportunity.
In 1972, Mr. President, the Senate debated, and rejected, a similar proposal. At that time, I argued that to interfere with the enforcement of equal educational opportunity through our judicial system would be a "dangerous violation of the constitutional separation of powers and an attempt to reverse the process of our Government and ourselves."
That assessment continues to be valid. Once again, we are faced with the challenge of resisting political pressures which seem to call on us to dilute constitutional rights and the ability of our
court system to guarantee them to American citizens. We must not abdicate our responsibility to safeguard those rights, and our commitment to fulfilling the promise of equal educational opportunity.
I believe the conclusion I reached in the debate 2 years ago on this issue bears repeating today:
We have made progress since 1954. This bill would repeal it.
We have offered hope. This bill would strangle it.
We have moved toward an open and equal society. This bill would call us to retreat.
I say instead, we must advance, advance in the hope that we can find better answers, advance in the fields of housing, jobs, urban transportation and all the other areas that can make our society whole and just. But if we refuse equal access to quality education for all children – as this legislation would – then we assure the failure of all our efforts.
I ask the Senate today not to fall short of its principles. I ask for the defeat of this measure and for a renewal of the movement of responsible Americans going forward together. There is no other way.
Mr. President, I ask unanimous consent that a series of articles on the issues raised today, evaluating our progress toward fulfilling our commitment to equal educational opportunity in the years since the Brown decision, be printed in the RECORD.
There being no objection, the articles were ordered to be printed in the RECORD, as follows:
[From the Washington Post, May 15, 1974]
RACE, SCHOOLS AND THE SENATE
In March of 1972, when Watergate was still a gleam in Gordon Liddy's eye and the Board of Directors (as we now know) had yet to give final approval to his plans, Mr. Nixon unveiled his preposterous "anti-busing" plan. Mr. Ehrlichman, now busy with other matters, did the best a lawyer could do to justify and explain its patent illegalities to the press. And Richard Kleindienst, then Acting Attorney General and nothing if not blunt, happily explained to a committee of Congress that the proposed legislation would authorize the reopening of every school case – North and South – that had been settled since the Supreme Court's original school desegregation decision in 1954.
Since that time we have acquired, for our sins, a much richer context of administration law- breaking and contempt for the commands of the constitution into which to fit this particular exercise in defiance and contempt – from the court-blocked adventures in impoundment of congressionally appropriated funds to the Watergate crimes and improprieties to the sloven procedures for obtaining wiretaps, which has just compelled the Burger Court unanimously to render a decision that will free some 600 persons accused and/or convicted of violating federal criminal statutes. So it is hardly surprising that the administration's proposed monument in the field of desegregation law turned out itself to be a monumental challenge to due process, to the Constitution and to the rule of law. What is surprising and – to put it mildly – distressing, is that two years later the U.S. Senate is considering commemorating the 20th anniversary of the Supreme Court's 1954 decision by passing this proposal. Today the Senate is scheduled to vote on a House-passed variation of the Nixon administration bill which has been introduced by Senator Edward J. Gurney of Florida as an amendment to an extension of the federal school aid act. And the vote, according to most accounts, is likely to be close.
Everybody, as it seems, is against skullduggery and for the rule of law – except when it is either inconvenient or inexpedient to explain. Thus, legislators who in a nonpolitical year would acknowledge themselves horrified by the reckless sweep of this proposal and acutely aware of the cynicism from which it springs, are counted among those who, for "political" reasons are likely to go over the side and vote with Mr. Gurney. We refer to the cynicism underlying the effort because for all the chaos and disruption it could bring to settled school systems North and South, the proposal itself would almost undoubtedly be overturned in many of its key parts by the Court, meanwhile creating new and burdensome problems for numerous of those communities whose burdens it purports to relieve.
Consider the bill's provisions. Its list of mandatory remedies that must be invoked before busing can be ordered could cost tax-ridden communities a fortune in the demolition and construction of schools. It is a rich man's bill, in effect providing that any busing which occurs will spare the affluent suburbs and be contained within geographical limits that are likely to result only in sending poor blacks from their own inferior schools to the inferior schools of neighboring poor white children – to communities where racial hostilities and insecurities are keenest. And, above all, it says to black children – to black people generally in this country – that even where a finding has been made of unconstitutional discrimination against them by the state, there will be no remedy in many cases. It is a tribute of sorts to the monstrosity of this concept, in a nation of laws, that back in 1972 even Mr. Ehrlichman had trouble explaining it when pressed.
In the 20 years that have passed since the Supreme Court rendered its original decision in Brown, and in the 10 years that have passed since the Civil Rights Act of 1964 gave that decision heightened impact and authority, there have been some lower court decisions and administrative interpretations that, to our mind, have skewed and distorted the meaning of the law and imposed senseless burdens on communities around the country, so that both blacks and whites have suffered. There have been, in other words, some bad busing decisions and some unreasonable and unsound bureaucratic regulations rendered. It could hardly be otherwise, given both the complexity of the cases and the familiar resistance to reasonable and desirable change that preceded and, in effect, brought on the compulsory programs to which so many now object. But it has been clear for some time now that the Supreme Court was moving carefully and deliberately to refine its position in consonance with the constitutional command that is the bedrock of Brown so as to take account of changed circumstances that underlie so many school cases 20 years later. This is as it should be. The question is whether the Senate will wait. The alternative before it today was admirably summed up by William McCulloch, who was ranking Republican member of the House Judiciary Committee, when the Nixon bill first came up two years ago, accompanied by a proposal for a temporary freeze on busing orders:
"It is with the deepest regret that I sit here today to listen to a spokesman for the administration asking the Congress to prostitute the courts by obligating them to suspend the equal protection clause so that Congress may debate the merits of further slowing down and perhaps even rolling back desegregation in public schools. What message are we sending to our black people? Is this any way to govern a country?"
[From the Washington Post, May 12, 1974]
THE BROWN DECISION: 20 YEARS LATER
(By Robert C. Maynard)
All they knew for sure then was that it was wrong. The black parents of the children in Topeka, Kan., and Summerton, S.C., meeting in secret with out-of-town lawyers, signed those legal complaints against their segregated school districts because they were looking for a better break for their youngsters.
All they really wanted was a better education for their children than they had received.
They had no way of knowing that one day it could be said that they had set off one of the most profound social revolutions any modern society had experienced. Their complaints went all the way to the U.S. Supreme Court, and when the justices decided unanimously in their favor, it is unclear now just how much even those nine men realized what would happen in the next generation. Only one thing is certain as we approach the 20th anniversary of Brown v. Board of Education: The decision delivered on May 17, 1954, had to do with far more than the desegregation of the public schools of this country.
Today, when the experts assess the impact of the Brown decision, they are prone to count black noses and white noses in school districts of the North and South and conclude that the desegregation of the American public school is a long way from completion. Many of the experts – and many parents – now question how important "integration" is for education. But if they look at the schools alone, they will have missed the point of what Brown did to the American political landscape.
Look, for example, at the state of Mississippi. Don't just count the desegregated school districts, but count also the number of blacks elected to state and local office: 152. That's 13 less than Michigan has. And 152 more than Mississippi had in 1954.
Look at the number of suits brought in the fields of housing, employment and recreation, all relying on the same interpretation of the equal protection clause of the 14th Amendment that the court reached in Brown.
Chalk it all up to Brown. That and much more. From the simple aspirations that moved those black parents in the last 1940s to sue for the right to send their children to a better school in the Summertons and the Topekas flowed a series of events that would overturn more than a half century of black quietude and lead to a movement that would shake the very foundations of American society. Its methods would be duplicated by the foes of an unpopular war, by advocates of equal rights for women and by activists in the causes of homosexuals and the elderly.
For Brown is a symbol of the start of the era of liberation movements in the United States. Its concept of the 14th Amendment was destined to affect virtually every aspect of the relationship of Americans with each other.
And it was to give to blacks the first sense of the possibilities of equal citizenship that they had dared to have in nearly 60 years. Black Americans had been living in a twilight of deprivation called "separate but equal" for all the 20th century until the court acted in Brown. The joke among blacks had been that if the United States were nearly as "equal" as it was separate, "we would be in pretty good shape."
Brown has not changed all that. Far from it. The United States is still a deeply divided society. Race enmity still poisons the well of its social relations and mars its image as a democratic society. What Brown has done is two things: It threw the weight of the law to the other side, to the side of equality. And it made blacks aware that they could struggle and dare to win a social revolution whose goal is absolute equality before the law and in the eyes of their fellow man.
What began as a simple plea for the right to attend the same schools with whites has become a complex of goals that includes the demand to share in the decisions that affect the very manner in which the society is governed and how its institutions function.
In the years since the decision, much blood and energy has gone into that social revolution and more will undoubtedly follow before the day comes when blacks can believe they have achieved their goals. Indeed, not all blacks agree on what those goals are. Since Brown, many have disdained the very notion of "integration" with white society. Yet, even in that expression of disdain, we see again the impact of Brown. To arrive at that conclusion suggests a sense of choice, of options. No such choice seemed real to most blacks just 20 years ago. A whole generation has been born, grown up and gone to college without ever having seen a restroom door marked "white" and "colored."
A black sophomore today might only learn through a black history course of a time in the 1940s when a black youth won admission through court order to the University of Oklahoma Law School, only to discover that his classrooms had a rope across two seats marked, "reserved for colored."
It was not until the Supreme Court took up the cases we now know as Brown that all those changes and many more began to occur. Brown simply enunciated forcefully a principle that blacks had known must come one day. It was not in itself a great surprise. Blacks had lined the curbs outside the Supreme Court in the winter of 1953 in the hope of getting a seat to hear an NAACP lawyer named Thurgood Marshall argue the law and the principle they knew the court would adopt.
The social climate in which Brown occurred was one of increasing determination to break down the barriers that had existed for the 50 years since the Supreme Court had ruled in the case of Plessy v. Ferguson. To understand the importance of what Brown did, and thus to understand the events that followed Brown, it is necessary to go back a moment in history to the Plessy case.
When the Civil War ended, the era known as Black Reconstruction began in the South under the aegis of a Republican administration and a Republican Congress. Federal troops were used to support the Reconstruction governments of the states of the Old Confederacy. Blacks, most of them former slaves, began a process of self-government that would put more than a dozen in Congress and result in a handful holding governorships and other high offices throughout the South.
That arrangement lasted from the end of the Civil War until the presidential election of 1876. It was then that the dreams of blacks were brutally dashed.
Republican Rutherford B. Hayes and Democratic candidate Samuel B. Tilden ended the election campaign of 1876 with neither a clear electoral vote winner, although Tilden had won a popular majority. The Democrats of the South struck a deal with Hayes. If he would agree to remove the federal troops from the South, they would support him over the candidate of their own party. Blacks were left at the mercy of planters and workers who considered them inferior, fit only for manual labor.
Alan Barth, in his new book, "Prophets with Honor," describes the legal situation in which blacks in the South found themselves over the next two decades:
"North Carolina and Virginia ... found it wise to pass laws that forbade all fraternal organizations that permitted members of different races to address each other as 'brother.' Alabama saw fit to adopt a law prohibiting white female nurses from attending black male patients. A New Orleans ordinance segregated white and colored prostitutes in separate districts. A Birmingham ordinance made it unlawful for a black person and a white person to play together ... at dominoes or checkers. Oklahoma banned any companionship between the races while boating or fishing. Thus did the dominant race demonstrate its 'superiority'."
Homer Adolph Plessy was an octoroon. An octoroon is a person with one-eighth black blood, the rest white. By the standards of Louisiana law of the last century – and indeed until this day – an octoroon is considered black. The streetcars of Louisiana in 1895 were separated so that blacks were forced to ride in the rear. Homer Plessy bought a ticket, tried to sit up front, was arrested and found guilty by a local judge, John Ferguson. Thus began the case of Plessy v. Ferguson.
All but one justice of the Supreme Court upheld Judge Ferguson. The majority concluded that the rear of the streetcar was as good as the front, that the courts could not force people to sit beside each other, and furthermore, said Justice Henry Billings Brown for the majority:
"If the civil and political rights of both races be equal, one cannot be inferior to the other civilly or politically. If one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane."
The lone dissenter, Justice John Marshall Harlan, argued to no avail with his brethren that "Our Constitution is color blind, and neither knows nor tolerates classes among citizens ... The humblest is the peer of the most powerful." Then, in language that would not be equaled in the Supreme Court for a half century, he declared:
"We boast of the freedom enjoyed by our people above all other peoples. But it is difficult to reconcile that boast with a state of the law which, practically, puts the brand of servitude and degradation upon a large class of our fellow citizen, our equals before the law. The thin disguise of 'equal' accommodations for passengers in the railroad coaches will not mislead anyone, or atone for the wrong this day done."
As a New England orator had occasion to put it at another time, "rivers of blood and years of darkness" separated the days of Plessy from the time of Brown.
The reign of terror that swept across the black communities of the South was like nothing that occurred in American history before or since. Lynchings reached as high as the hundreds in some of the years between the turn of the century and the end of the 1920s. Blacks streamed out of the farmlands of the Deep South, often fleeing for their lives with no more than the clothing on their backs. They jammed into the cities in search of refuge, jobs, education and health care. They found the cities indifferent to their plight and they knew few if any of the urban skills.
Only the great migrations of the middle 19th Century from the cities of Europe to the cities of America matched the mass movement of black Americans from the rural South in the aftermath of Plessy.
Depression, New Deal and World War II all were instrumental in bringing alive the hopes of black Americans that the Constitution might one day apply to them. By the end of the war, the black men who fought oppression and fascism in Europe were in no mood for oppression at home. It was the children of this generation of black veterans who would become the plaintiffs in the cases known collectively as Brown.
By the time of Brown, the black communities were simmering with discontent and determination. The contradictions of racism had become too poignant. The Cold War was in high gear and this nation was denouncing oppression in Eastern Europe while black children and white children were being kept apart in school districts across the land. Moreover, the African and Asian nations were emerging from a century of European colonialism and were looking to the West with a questioning eye and scrutinizing the moral leadership of the most powerful of Western post-war nations.
Brown and its implications were on every black person's mind in August of 1955 when a grisly event occurred that might well have rivaled Brown in its impact on the political awakening of black America. In the little hamlet of Money, Miss., hard by the Tallahatchie River, Emmett Louis Till was lynched one night. The child, retarded and slightly built, lived with his mother in Chicago. She sent him back "home" to Money for the summer vacation of his 14th year.
It is unclear whether Emmett Till ever realized his "crime." He allegedly had whistled at a white woman on the streets of Money. She went home and told her husband she had been "assaulted" by a black youth. The husband and his half-brother were later to admit that they took the child from his uncle's home at 2 o'clock on the morning of Aug. 28 and carried him to the banks of the Tallahatche. There they brutalized and mutilated him, shot him through the head, tied a heavy weight to his body with barbed wire and dumped it into the Tallahatchie
Late that September, with the eyes of the world – and especially those of black America – fixed on the shabby little courthouse at Sumner, Miss., the two men were tried for murder. The all-white jury deliberated for a little less than two hours before acquitting them.
The reaction of many Northern whites was outrage. The reaction of blacks, North and South, was a grim realization that much remained to be done to make the doctrine of Brown apply to every aspect of life in the United States.
Rosa Parks had never heard of Homer Plessy. That early evening of Dec. 1, 1955, she boarded the Cleveland Avenue bus in Montgomery, Ala., with social protest the furthest thought from her mind. She took a seat and the bus made its way to Court Square. It was then that the driver ordered Rosa Parks to move to the rear of the bus to make room up front for a white passenger. Rosa Parks, 43, said, "No." She was a weary seamstress who simply didn't have the energy to move and saw no reason she should have to. She was arrested and the next phase of the social revolution was under way.
The Rev. Dr. Martin Luther King Jr. was new to Montgomery. The son of a prominent Atlanta, pastor, young King had come to Montgomery's Dexter Avenue Baptist Church, not far from the state capitol. When Rosa Parks was arrested, the blacks of Montgomery were ready for protest and the city's black clergy asked King to lead the way. A boycott was organized and not a black was to ride the municipal buses of Montgomery for 381 days. The Supreme Court struck down the city ordinance that had mandated the segregation of the seating of buses in Montgomery and across the South. It was a victory for Rosa Parks and the end of the boycott, but it was only the beginning of Martin Luther King's journey into history.
The methods that King enunciated for the Montgomery protest were borrowed from his understanding of the teachings of two towering figures, Gandhi and Thoreau. He called it "creative nonviolence," and ordained that no matter how much he was abused by his enemies, he would respond in a spirit of love.
There had never been a protest style like that in black America, but it caught on and in the next several years it swept across the Southland. Blacks challenged every form of discrimination that they could figure a way of testing with their bodies and with King's new philosophy.
It had no ready application to the desegregation of the public schools, so it took the decision of President Eisenhower in 1957 to federalize the Arkansas National Guard before nine black children could get into the Central High School in Little Rock. That decision, however, added buoyancy and determination to the new nonviolent protest struggle. Blacks believed for the first time that they might actually break the back of segregation.
When the black students of Greensboro, N.C., sat in at a dime store lunch counter in 1960, they employed the tactics taught by Dr. King and allowed themselves to be abused without fighting back. When that news was spread across the country by television, thousands of students, black and white, began to challenge the segregated lunch counters and another barrier to equality, symbolic as it was, fell before the onslaught of nonviolent protest.
What the Supreme Court had lacked the power to accomplish in the schools was being accomplished by King's shock troops in the restaurants and hotels, the public beaches and the bus stations.
It was 1961 before it became apparent that the movement for black equality was splitting into two strains, and that the disdain for integration – not taken seriously before – would one day prove to be a powerful force in black America.
The Freedom Riders swept down on the South, with blacks and whites riding buses from town to town, getting off here and there to test the segregated waiting rooms and rest rooms with their "white" and "colored" signs. At Anniston, Ala., one afternoon in the spring of 1961, a white mob attacked the bus, set it afire and slashed its tires. The photograph of the mob's handiwork went around the world. In New York City, that photograph showed up as a pamphlet with a caption asking:
"Do you really want to integrate this burning bus?"
A different version of social revolution was starting to capture the imagination of Northern urban youth who had neither the patience nor background for King's form of love for his enemies.
There was Robert F. Williams, a North Carolina NAACP leader who led a group of armed blacks to chase some Klansmen out of town. Within months, Williams was run out of the country, to Cuba and China, but the notion of stiff resistance was to have another leader in Minister Malcolm X of the Nation of Islam, or Black Muslims.
A former convict who had found the teachings of Islam while in prison, Malcolm X preached a hard line against integration on the street corners of Harlem and soon had a massive following among young Northerners, slum dwellers and collegians alike, who questioned King's posture of nonviolence in the face of attack.
The crucial test came in Birmingham in the spring and summer of 1963. King led the civil rights movement into full battle against the resistance of Public Safety Director "Bull" Connor.
Connor turned fire hoses and police dogs on King's unresisting marches one day in the full view of television cameras. With the powerful impact of that scene on world opinion and with the support of such patriarchal figures of the civil rights movement as A. Philip Randolph and Roy Wilkins, King organized a march on Washington to demonstrate the sentiment of "all decent Americans" in favor of a civil rights law that would carry out the sentiments expressed by the Supreme Court nine years before in Brown.
Nearly a quarter of a million Americans came to march. They heard one of the most eloquent speeches of its kind: "I have a dream," said King, and the Mall went wild with cheers. It was perhaps the high point of King's career as a spiritual and moral leader, and the high point, too, of the nonviolent movement.
Less than a month later, at the 16th Street Baptist Church in Birmingham, a bomb went off during Sunday school and four little girls were killed. In an era in which brutality against blacks had been commonplace, and in which many black churches had been destroyed by bombs, that sickening Sunday stood out in many minds as a psychological turning point against the nonviolent movement.
By the time the first decade of Brown had ended, there was deep disillusionment in black America. The noble language of the court had not translated into tangible change. What had seemed so simple had turned out to be profoundly complicated.
Brown had exposed the deep hypocrisy of racism and demonstrated that attitudes and behavior were far more difficult to change than most blacks had ever imagined.
Rather than share their schools with the blacks who had been denied access, many whites fled the cities for the suburbs, leaving those cities in a state of decline. The harder blacks tried to strive forward, the stiffer the resistance seemed to become. The major civil rights legislation of 1964 and the Voting Rights Act of 1965 showed some early promise, but the enduring legacy of racism was not to be so easily overturned by court rulings and laws.
Only a few days after passage of the Voting Rights Act, the Los Angeles community of Watts exploded with a new form of urban racial violence.
From the ashes of Watts, a new awareness emerged in black America. Malcolm X, who had been assassinated that February, became larger in death than he had been in life. His warning that blacks and whites could never become one nation seemed to have sunk in. Nothing was changing for the black man in the job market, in education or in housing. So Watts set the stage for the urban rebellion – an expression of anger that swept across the cities, an uncontrollable wild fire, for the next five years. At each turn, it became clearer that blacks were determined to choose a different course, a course of their own. Black nationalism among the young became more popular than at any time since the movement of Marcus Garvey in the 1920s.
By 1967, the goal of integration that had so strongly attracted so many blacks was all but forgotten. "Black Power" was the new slogan, replacing "We Shall Overcome."
Instead of integrated schools, the intention of those who brought the suits in Brown, community schools became the goal. And it was not just schools, but the whole social structure. Many blacks no longer wanted what the white man had. They wanted a world of their own.
And young angry voices arose declaring they were ready to fight for it, to die for it. They were called Panthers and Liberators, cultural nationalists and political nationalists. They called on their brothers and sisters to look toward Africa, to think of themselves as part of the Third World, merely trapped in the belly of the American whale. Even those older blacks who considered themselves middle class could not resist the emotional tug of the new ideology so far away from the language of Brown.
Even as the country's attention was focused on those dramatic changes, less dramatic changes were occurring elsewhere. Throughout the South and the North, blacks were trying to get their hands on some of the power that resided within the system. From a half dozen blacks in the Congress at the time of Brown, the number inched up to 12, then 16, enough to have a caucus of their own and be taken seriously. In Mississippi and Alamaba, Georgia and Tennessee, blacks in increasing numbers were getting elected to state office. At the time of Brown, you could count all the black elected officials on your fingers. Now there are nearly 3,000, many of them in the Old Confederacy.
It is not progress with a capital P, but neither have blacks been standing still. What Brown has done is to expose a series of contradictions in American society. Thurgood Marshall, the man who argued Brown, is now an associate justice of the Supreme Court. Harry Briggs, one of the fathers for whom he argued, was forced to leave Clarendon County, S.C., for the Bronx, N.Y.
More blacks than ever are earning over $15,000 a year, but more blacks than ever are living at the poverty line. The black faces flash across the television screens, giving the news or acting in a commercial, but less than 3 per cent of television news professionals are black.
The antagonists of racial equality rail against the "liberal" press for its advocacy of equal rights. Yet, only seven-tenths of one per cent of all the newsroom professionals in the United States today are not white.
And so it goes, a little progress here, stubborn resistance there; a bright spot, a dark spot, hope, despair.
It is impossible now to predict what will be reasonable to say on the 25th or the 40th anniversary of Brown. Only this is certain: Hardly anyone guessed how much America would change, for good or ill, in the 20 years since that muggy May Monday when the Supreme Court pronounced that separate but equal was not good enough.
A COURT THAT DARED THE UNKNOWN
[From the Washington Post, May 12, 1974]
(By John P. MacKenzie)
"Somewhere, sometime to every principle comes a moment of repose when it has been so often announced, so confidently relied upon, so long continued, that it passes the limits of judicial discretion and disturbance."
So said John W. Davis, lawyer for a South Carolina school district and courtroom spokesman for the status quo in Southern race relations. He was telling the Supreme Court that whatever it might think the 14th Amendment meant in 1953 and 1954, the justices should be guided by the pronouncements of 1896 and subsequent years approving "separate but equal" as a constitutional doctrine.
When the Supreme Court handed down its famous and unanimous desegregation decision of May 17, 1954, there were more causes won and lost than Davis' or that of his opponent, Thurgood Marshall. Seen across two decades, the decision appears to have been the breakthrough for an entirely new judicial approach, a major restructuring of American government. The judicial branch has not been in "repose" since then.
In the longer view, the rule of Brown v. Board of Education, coming on the heels of decisions opening up state-financed college and professional education to blacks, was an evolutionary, logical next step and nothing radical. The major new element was that the court had lost its fear of the unknown.
Fear of breaking the 1896 precedent of Plessy v. Ferguson was partly rooted in respect for the past and partly in fear for the future. What social upheavals would desegregation cause, What violent reactions, what administrative nightmares would the judiciary be calling down upon itself?
OTHER BATTLES
Once engaged in the battles over racial justice, the Warren Court looked upon other battlefields with less awe. The "political thicket" appeared more manageable and the justices saw legislative apportionment not as a "political question" but as a denial by politicians of the political rights of Americans. Looking under the rocks of the criminal justice system, the court found violations of the constitutional rights of individuals and hastened to outlaw them.
To the John Davises and others the court had slipped its moorings and was so "activist" that a judicial dictatorship seemed imminent. But to a host of other Americans, the court was opening a new avenue of redress for disadvantaged and forgotten citizens.
Richard M. Nixon, who as vice president had hailed Brown as the work of "our great Republican Chief Justice," was anxious as President to call a halt to the activism and restore what he called "strict construction" of the Constitution. But three of his four appointees ended up voting to uphold federal court judgments against state anti-abortion laws. And Chief Justice Warren E. Burger led a charge into the religious arena, proclaiming that the only "entanglement" to be feared was government aid entangling the state and religion.
WARNING SIGNALS
To be sure, Burger's principal aim has been in the opposite direction, to disengage the judiciary from some of the old conflicts and try to avoid new ones. He stated his perspective clearly shortly before his elevation to the highest court. Complaining about the inexorable development of Fifth Amendment law in case after case, he argued that it was "all too much of a good thing, this criminal law trend." The higher courts, in their concern for the individual, started down a road in which each step is a logical extension of the step immediately preceding it, "but when you get to the end of that road and look back, often you find you have arrived at a place you hadn't intended to go at all."
The court under Chief Justice Earl Warren did indeed seem to start things without being sure where they would end, confident that if one case led to another, it would still be sitting and capable of handling the next case justly. It approached the Brown case that way over Davis' warnings of a future with overtones of racial "quotas" and white flight.
If Clarendon, S.C., School District No. 1 desegregated perfectly and uniformly, he told the court, "if it is done on a mathematical basis, with 30 children as a maximum you would have 27 Negro children and 3 whites in one school room. Would that make the children any happier? Would they learn any more quickly? Would the terrible psychological disaster being wrought, according to some of those witnesses, to the colored child be removed if he had three white children sitting somewhere in the same school room? You’ll say that is racism. Well, it is not racism ..."
Justice Felix Frankfurter raised similar warning signals, questioning whether the racial isolation of the urban ghetto would not frustrate effective remedies. But he, like the other eight justices, came down hard on the threshold question – was there a violation of constitutional rights? – and answered that question first. Implementation plans could be tackled in another round of argument. In 1955, the announced "all deliberate speed" enforcement formula amounted to another postponement for much of the Deep South.
Justice Hugo L. Black disclosed shortly before his death that he favored instant system-wide enforcement in every district where segregation was under legal attack. Retired Justice Tom C. Clark said recently that he regretted the courts' collective lack of foresight in failing to decree grade-a-year compliance starting with kindergarten. The justices must have explored these routes and many others before settling on postponement. But if they had taken on the whole problem at once, would they have made the initial constitutional judgment about segregation?
HOW MUCH EQUALITY
Similarly, the court began its reapportionment adventure by declaring that the courts were open to challenges by citizens under-represented in their legislatures. The precise standards could come later. When they came and they amounted to "one man, one vote," critics complained that the courts should not apply rigid mathematical formula but instead should permit deviations based on how judges measured political factors such as geography, population distribution and even competing "interest groups." The irony was that such a measurement would carry judges even deeper into the political thicket.
Criminal law, as Burger observed, developed in similar fashion. In 1964 the court threw out a confession obtained from Danny Escobedo when police cut him off from his lawyer. This opened up yet another question: What about equal justice for the arrested suspect too poor to hire his own counsel, a question settled in favor of the defendant in the even more controversial 1966 Miranda v. Arizona decision.
Equality, the most sought-after constitutional principle of the Warren Court from Brown forward, was a hard idea to contain. Paul A. Freund told his Harvard law students it was like a boy who said he knew how to spell "banana" but didn't know where to stop. In racial matters it met with massive resistance but the idea marched on so relentlessly that miscegenation laws, long a symbol of deep-seated racism, died a quiet and almost natural death in 1967 again with no justice dissenting.
The 9-to-0 voting pattern that held firm through Little Rock in 1958 and even the intransigence of school officials in Prince Edward County, Va., in 1964, remained intact through 1968 when the court, tired of a case-by-case desegregation process that was not working, gave full force to the principle that only effective remedies would be approved. Segregation was to be eliminated "root and branch," in Justice Black's phrase, and the South must produce not white or black schools but "just schools."
Only after President Nixon had appointed four justices was there a full-throated dissent on school desegregation and even then, in 1973, the vote to extend key principles of equal protection to Northern school systems was 8 to 1. Also by then, the nature of the problem was changing and new civil rights claims, such as that of "reverse discrimination" through racial quotas, were becoming more insistent.
A PARTIAL HALT
Now a new majority has moved to cut down the growth of new ideas of equality. The court has refused to extend constitutional protections against discrimination in housing beyond race into the field of bias against the poor. It has declared itself helpless and disinclined to intervene where states parcel out school money unequally among districts. Blacks and urban whites trying to recapture whites who have fled to suburban Detroit schools will be lucky to survive the current round in the high court.
But the effort to wind down the judiciary's "activism" does not appear likely to succeed completely. One reason is that the newly constituted court has maintained much of its commitment to racial equality and displayed a willingness to enforce that commitment. Another reason is that legislatures, some of them energized by reapportionment, are creating and safeguarding new rights and remedies which the courts must enforce.
Furthermore, there are increasing signs of public acceptance of a full partnership in government for the judiciary. Last fall many Americans were saying it was the high court's "duty" to decide the question of subpoenas for White House tape recordings. Suggestions of a role long undreamed of for the courts – judicial review of a congressional impeachment verdict – have been raised by a lawyer for "strict constructionists" John Ehrlichman and H. R. Haldeman. The very fact that the Supreme Court has never flatly ruled on the question is an invitation to more judicial business and only the Supreme Court can say the review power doesn't exist.
[From the Washington Post, May 12, 1974]
TOPEKA TREADMILL: LINDA BROWN'S CITY FACES A NEW BATTLE
(By Austin Scott)
TOPEKA, KANS.– In the wonderland of Topeka, home of both Brown and the board of education members who ran all the way up to the Supreme Court in 1954, there is indeed a sense of having huffed and puffed and ended up close to where you started out 20 years before.
The High Court's landmark desegregation order certainly didn't move the young plaintiff, Linda Brown, very far. A 1st grader when her father first filed the suit in 1951, Linda had gone through one all-black elementary school and on to a second all-black school by the time of the decision.
And though Topeka repealed its segregation law a year before the Supreme Court order, the city didn't move very swiftly to rectify matters once the decision was handed down: Nine black children were placed in previously all-white schools the first year, and a few more the second year.
In fact, public controversy over school segregation had just about died out over the past 20 years – until last September, when a new suit was filed charging that Topeka schools are still "systematically" segregated. Topeka is thus facing the possibility of another painful integration fight 20 years later, but this time with the battle lines drawn quite differently and with enough ironies to bewilder even Lewis Carroll's Red Queen.
In 1951, when Brown v Board of Education was first filed in Kansas courts, for example, one underlying issue was that legal segregation prohibited some black children from attending their neighborhood schools. But the new suit charges that Topeka schools are still segregated in part because children attend neighborhood schools, that school segregation is an extension of the city's de facto segregated housing patterns.
Similarly, Charles Scott, the black attorney who filed the original Brown case, signed his name several years ago to another suit which tried, in his words, to "establish a school system in several cities which would give black boards of education in black neighborhoods control over all-black schools, and comparable set-ups for whites." Integration is no longer a priority issue in black Topeka, Scott says. "It's peculiar what 20 years of disillusionment can do to you."
And Topeka's black citizens, whatever their private feelings, have not publicly supported the latest suit, filed in U.S. District Court last Sept. 10 on behalf of a 10-year-old black girl by the Rev. Fred W. Phelps, a white Baptist minister who has 13 children and a congregation totaling 63.
Linda Brown, who gave her name to the historic 1954 decision, is among the many blacks who have been quiet about the new suit. Now 31, she has been married and divorced.
Her two children started their education in the same black school that her father sued to get her out of. And she seems to be taking the latest legal battle with a calm fatalism. She has not paid much attention to it, she says. But then she believes the real problem is housing, not schools.
"I think if they don't find an answer to that, we are still going to have segregation," she remarks. "Topeka today is more segregated in housing than 20 years ago ... It seems more crowded now, more concentrated than it was."
If Topeka is more segregated than it used to be – and the dividing line between black and white neighborhoods is as easy to spot as in the rigidly segregated housing market of Chicago – then Linda Brown is one of the exceptions.
Her son Charles, now in 5th grade, and her daughter Kimberly, a 4th grader, both started their kindergarten education in Monroe, the school their mother was attending in 1951. It was all black when she went there, and she says it was 98 percent black when they started.
Then she moved, and the children spent three years in a public elementary school that was only 20 percent black. She moved again, and the children spent less than a year in a suburban public school that was 98 percent white. She moved a third time, and for the past five months the children have been attending Hudson, which is about 35 percent black and only a block from the middle-income integrated apartment complex where they live.
As a child, Linda Brown had to travel 30 blocks to school, passing several all-white schools along the way. "Sometimes the weather was so cold it was unbearable for a small child," she recalls. "I'd start crying in the middle of the walk, turn around, and come back.
"Am I happier with Chuckie in the school he's in now? Yes, I am, because it's more like the world that he's going to grow up in, relating with people of all races. This helps him adjust to the world around him."
The notion of an integrated "real world" threads constantly through Ms. Brown's talk about her own past and her children's future. She works from 4 p.m. to midnight as a key punch operator at the Goodyear plant. Her sister, Terry Ickard, whom she lives with, takes care of Charles, Kimberly, and her own Michelle, in the evenings.
"I think the education my children are getting today makes for a better adjusted person," she remarks. "I feel today it would have really benefitted me if I had gone through an integrated neighborhood school throughout my education, starting with elementary level, because to me in an integrated school it seems your rate of progress is faster. I notice this in my children. The times and the integrated setting both have a lot to do with it. You have more of a drive to meet competition."
GRUMBLING ABOUT PHELPS
Even though Ms. Brown has paid little attention to Phelps’ suit, her notion of why an integrated education is a good thing does not seem to conflict with his.
Mentioning Phelps' name in some areas of black Topeka brings grumbling sounds, however, sounds that indicate some very vocal blacks don't like what he's doing. They use words like "opportunist" and speculate about why a white like Phelps "is taking on the responsibility for a black problem."
At 43, Phelps is an intense, free-swinging legal activist who became a lawyer to help support his growing family, and is well aware that many Topekans – black and white – are put off by his style.
Those familiar with the months of careful preparation that went into the original Brown case, the long and difficult task of mobilizing black community support first, of persuading 20 parents to let their children be named as plaintiffs, say Phelps is an unlikely attorney for the second time around. Phelps, for example, is proud of winning a large damage award for a black woman whose television set was wrongly repossessed. Blacks have criticized the argument he says he used – that she had developed an unnatural psychological dependence on the set and that its withdrawal caused her serious emotional and physical problems.
Born and raised in Mississippi, Phelps, describes himself as an independent Calvinistic Baptist, believing in predestination, a literal interpretation of the Bible, eternal retribution, and "thunderous, hellfire preaching ... There isn't any doubt in our minds about Judgment Day ... The Lord God is my contact."
He says he had never considered a desegregation suit until last summer when he was sitting in a Harvard Law School seminar. He hurried home to file it.
"How are we gonna get these black kids integrated with these white children so they can gain the advantages – that's the problem now," he says.
"A LITTLE BIT OF EDGE"
One of the major charges in Phelps' suit, in fact, is that the Parkdale Grade School, which is 90 per cent black and attended by plaintiff Evelyn Rene Johnson, denies "the intangible qualities of advantageous social intercourse and opportunity to study with, engage in discussions with, and exchange ideas with white children who are providentially favored economically and socially ...
"They don't have the ability to be making friends with the future white judges," says Phelps. "You can talk all you want to, if you went to school with that white judge, you get a little bit of edge."
That kind of talk tends to send advocates of black pride and black excellence into fits of rage.
The suit also charges Topeka with providing better facilities at mostly white schools. That, it contends, generates "... in plaintiff and her class feelings of inferiority as to their status in the community, thus affecting their motivation to learn and generally affecting their hearts and minds in a way unlikely ever to be undone."
Although Phelps borrowed the "hearts and minds" language from a Supreme Court decision, blacks who disagree with it argue that social changes have made such thinking obsolete. Federal Judge Constance Baker Motley, once one of the NAACP attorneys active in the Brown case, for example, remarked in a recent speech at Notre Dame University that "it appears that it may be meaningless to talk about feelings of inferiority to a black youth in the central city where blacks no longer consider themselves inferior to whites and no longer believe that any institution which is all white is necessarily good and ought to be integrated."
Back in 1950 and 1951, those laying the legal groundwork for Brown were trying to avoid a decision that might have ordered separate schools to be made equal.
"We made the legal presumption that the white schools and the black schools were in fact equal, that the teachers, the books, the classrooms equal," recalls attorney Scott. "We wanted the case to rest purely on the argument that despite all the apparently equal physical facilities, segregated schools inherently provided black children and maybe even white children with an incomplete education."
The Coordinating Council of the Black Community, a black umbrella group formed after the violence of 1968, has taken "no position" on the Phelps suit, according to CCBC director, Eva Lou Martin. It has joined the NAACP in telling the board of education that all parts of the community should be involved in seeking a solution to the schools problem.
THE HEW INQUIRY
Not until after Phelps filed his suit did the Department of Health, Education and Welfare investigate the state of desegregation in Topeka schools. It then notified the city in January that a "substantial" number of schools were not as desegregated as they should be; that student transfers were increasing segregation; that "most minority junior high school students ... attend schools which are generally inferior in facilities ... ;" and that elementary schools with a high minority enrollment tend to have inadequate kindergartens and smaller libraries.
"You are, of course, aware that as a formerly officially segregated school district, your district has been under obligation to fully desegregate its schools," HEW said. "In order to achieve full compliance with the law, it will be necessary for you to develop and implement a plan which eliminates the violations set forth above."
Phelps' suit and the resulting HEW orders generated a flurry of back and forth activity by Topeka's all-white school board. The board first voted, 5 to 2, to draw up a desegregation plan and implement it by the 1974-'75 school year "if possible."
According to a local newspaper account of that meeting, "Dr. Gordon Sumners, one of the two board members voting against the resolution, said an act comparable to the Boston Tea Party might be an appropriate response to federal intervention."
But just last week the board reversed its stand and voted to tell HEW it is impossible to meet federal integration guidelines of no more than 40 per cent blacks in any school. Instead, board members said, they will conduct a study to see if major upgrading is needed at the black- dominated schools.
The desegregation plan they voted down – involving seven school closings and 22 boundary changes, would cause undue hardship and jeopardize quality education, the board said.
The 20 years since the Supreme Court's integration decision have produced a Topeka school system where, according to figures from the system itself, the two oldest black elementary schools contain more than 95 per cent minority students while the three newest junior high schools have only 2 to 3 per cent minority students.
A student at Topeka's Washburn Law School, using the system's figures, recently calculated that in 1972-'73, 14.1 per cent of the city's 12,614 elementary students were black, but 90 per cent of the black elementary students attended 44 per cent of the schools. Two schools were listed as all white, five were more than half black, and eight were more than 35 per cent black.
"SO MANY BROKEN HOMES"
There's a circular component to the whole problem that worries Linda Brown. To some extent, she says, she thinks neighborhood segregation results from school segregation.
"You get this almost ghetto situation and the black child does not have a chance to mingle with the people he will be with when he grows up. This is not the world that kids are going to enter. I think you'll find the older black adult is still afraid to venture out. This will change with younger generations. The younger kids here, they go apply for these job places that the older ones wouldn't."
But for all the importance she attaches to integration, she has some fears: "Before our black children are ready to go into a more integrated setting, our black parents are going to have to get these children in hand as far as discipline is concerned. My younger sister teaches at Monroe, 6th grade. She says their discipline problem is getting out of hand. I have seen that over where my kids go. The teacher tells the kids something to do and he just talks right back ... we have so many broken homes now, so many mothers working. It's happening in white homes too."
Would it make any difference in Topeka if she were to get involved in the latest suit, speak out strongly, perhaps? "I don't think so. There is going to have to be a solution to people living where they are living before the problem can be alleviated."
What about busing? "I am not for it at all. To me this is a reversion to what we were getting before Brown. It might just be me, but I had to walk all this distance to catch a school bus and be bused across town. If this is what it comes to here in Topeka, I will conform to it, but if there is another solution that would give us our neighborhood schools and still give us an integrated school system, I would rather see that."
[From the New York Law Journal, May 1, 1974]
WHERE HAS "BROWN" LED US IN 20 YEARS?
(By Constance Baker Motley)
In this article, Judge Constance Baker Motley of the U.S. District Court for the Southern District of New York sets forth her personal recollections of the Supreme Court's landmark ruling on school desegregation, Brown v. Board of Education, twenty years after it was handed down, and comments on its impact and implementation. Judge Motley, as a counsel on the staff of the N.A.A.C.P. Legal Education and Defense Fund, participated in the major school desegregation cases in the 1950's and 1960's. Between 1961 and 1964 she argued ten civil rights cases before the U.S. Supreme Court and won nine of them. This article constitutes the text of her recent lecture at the Center for Civil Rights at the University of Notre Dame.
When the Supreme Court announced its decision in 1954 barring state-enforced racial segregation in education that was only one part of its historic decision. The more difficult second part was yet to come. In that May 17, 1954, decision the Court directed counsel for both sides to submit new briefs in answer to Questions 4 and 5. These questions dealt with the type of relief to which petitioners would be entitled.
The five cases were also set down for further arguments as to these questions. As far as counsel for petitioners were concerned that directive fell on a stunned, physically and mentally exhausted crew of so-called civil rights lawyers.
HISTORY OF "BROWN"
The five cases, which have been collectively referred to herein as Brown, were first argued before the Supreme Court in December, 1952. On June 8, 1953, after initial arguments, the Court had set the cases down for reargument. In an order issued at that time the Court propounded to counsel five multipart questions. Three of the questions dealt with substantive constitutional issues and two dealt with the type of relief to be afforded should the petitioners prevail. We all had the feeling then that we were about to embark upon momentous times.
Following the June 8, 1953, order, NAACP Legal Defense Fund (LDF) lawyers had been on a seven-day work-week schedule. Months of research, conferences, and debate involving historians, sociologists, legal scholars and lawyers culminated in the memorable 235-page brief and appendix filed in September, 1953. We, therefore, found the 1954 order for further briefs and arguments after two prior briefs and arguments incredible.
NO JOY IN SELMA
I left the victory party in our New York City offices on the evening of May 17, 1954, to fill a speaking engagement a day or so later in Selma, Ala. Walter White, then executive secretary of the NAACP, had become ill and was unable to keep the scheduled speaking engagement in Selma. He asked me to go in his place. Upon arrival in Selma, I was shocked to find no rejoicing there, not even discussion. The center of Negro intellectual life in that black-belt county was a small Negro college struggling for existence in the midst of what I had come to know as rural southern poverty. I have no present recollection of what I said to the overflow crowd in that little church that Sunday afternoon. I do have the feeling, however, that whatever I said must have fallen on deaf ears. The march from Selma to Montgomery to enforce the long recognized right of blacks to vote came a decade later.
When I returned to New York, work had already begun on the new mandate. Up to this historical juncture we never really had to confront the harsh realities of a post-Brown era. We could no longer be ambivalent about the crucial question whether we wanted the court to simply order the immediate admission of the named petitioners or whether we wanted broader class relief. We had, of course, discussed these questions at great length, but the post-Brown era was now here.
EARLY SUCCESSES
We had previously succeeded in gaining the admission in 1950 of a few black students to the University of Texas and Oklahoma on the graduate and professional school level after four years of efforts This took place without disruption or violence, despite predictions to the contrary. As a result, we and the nation had had no real experience with large scale desegregation efforts in the field of education.
In the 235-page brief on the first reargument of Brown in December, 1953, in answer to Questions 4 and 5, we had argued that the Fourteenth Amendment requires that a decree be entered directing that petitioners be admitted forthwith to public schools as the court had ruled in the Texas and Oklahoma cases. The court's rationale there was that constitutional rights are personal and present and therefore could not be postponed in the interest of permitting the state time to make necessary adjustments.
Manifestly, those cases were distinguishable in an equity context. At the graduate and professional school level southern states had not set up a dual network of graduate and professional facilities for blacks. The number of blacks seeking advanced degrees was minimal.
The out-of-state scholarship program, held unconstitutional the Gaines case in 1938, had been devised to circumvent the state's obligation in this respect . Citation of these graduate and professional school cases, therefore, did not help the court in its perplexing task.
COURT'S REACTION
Moreover, the court must have found our "forthwith" argument ambiguous in view of the caption which preceded it. There, we said: "After careful consideration of all of the factors involved in transition from segregated school systems to unsegregated school systems, appellants know of no reasons or considerations which would warrant postponement of the enforcement of appellants' rights by this court in the exercise of its equity powers."
In other words, on the one hand, we talked of the "transition" from "segregated school systems" to "unsegregated school systems" in the caption and, on the other hand, we argued thereunder that the relief sought was the immediate admission of appellants. The immediate admission of appellants alone would not have resulted in the suggested transition. The dual school system would have remained intact.
Question No. 4 which the court wanted answered again read as follows:
"Assuming it is decided that segregation in public schools violates the Fourteenth Amendment–
"(a) Would a decree necessarily follow providing that, within the limits set by normal geographic school districting, Negro children should forthwith be admitted to schools of their choice? or
"(b) May this court, in the exercise of its equity powers, permit effective gradual adjustment to be brought about from existing segregated systems to a system not based on color distinctions?"
REPLY TO QUESTION NO. 4
This time, in answer to Question No. 4, we said in essence, that the school authorities must still admit petitioners forthwith but could be given until September, 1955, to complete "prerequisite administrative and mechanical procedures" necessary to admit "the complaining children and others similarly situated." We did not emphasize normal geographic districting because even then we were haunted by the specter of housing segregation in the cities. We were essentially idealists. We had visions most of the time of a few black children scattered among many white pupils in each classroom, the way those of us who were reared in New England remembered it.
Question No. 5, which the court wanted us to answer anew, read:
"On the assumption on which questions 4(a) and (b) are based, and assuming further that this Court will exercise its equity powers to the end described in Question 4(b)–
"(a) Should this Court formulate detailed decrees in these cases?
"(b) If so, what specific issues should the decrees reach?
"(c) Should this court appoint a special master to hear evidence with a view to recommending specific terms for such decrees?
"(d) Should this court remand to the courts of first instance with directions to frame decrees in these cases, and if so, what general directions should the decrees of this Court include and what procedures should the courts of first instance follow in arriving at the specific terms of more detailed decrees?"
SEPT. 1 LIMIT URGED
In answer to Question No. 5, we argued that if the Court should allow an "effective gradual adjustment" from segregated school systems to systems not based on color distinctions, it should not formulate detailed decrees but should remand the cases to the courts of first instance with specific directions to complete desegregation by a day certain.
We also suggested an outside limit of Sept. 1, 1955, in answer to Question 5. This would have set an outside limit of more than two years after the May 17, 1954 decision. We further urged that a decision granting the school authorities before the Court time "should be so framed that no other state maintaining such a system is lulled into a period of inaction and induced to merely await suit on the assumption that it will then be granted the same period of time after such suit is instituted."
Here we appeared to be reaching, in effect, for relief in suits not yet instituted, but the constitutional limitations of due process were readily apparent. What we really wanted was some statement from the Court to the effect that it hoped the rest of the South would accept its decision as the law of the land and avoid a multiplicity of similar suits.
BRIEF OF CLASS ACTION
Much to our surprise, on the second reargument in the fall of 1954 the court requested us to file still another brief solely on the class-action aspect of these cases, i.e., the extent of the class and the effect of a decree on members of the class not before the Court. We, of course, argued that members of the class not before the Court were entitled to the same relief as the named petitioners.
This additional brief was required because the respondent school authorities had argued that in so-called spurious federal class actions of the type brought in the Brown cases relief could be afforded only to those petitioners actually before the Court. In so-called true class actions in the federal courts all members of the class were bound by the judgment and therefore entitled to relief whether present or not. This was a transparent attempt to limit the impact of Brown to the few remaining named petitioners. The cases had been pending so long that some of the petitioners had already finished school. We defined the class in that particular brief as all those attending and qualified to attend schools in the particular school system before the Court. The Court agreed.
On the surface this class relief argument again appeared inconsistent with our original forthwith stance as to the named petitioners, but this was not necessarily so. The Court could have ordered the named petitioners admitted forthwith and ordered unnamed members of the class admitted within the outer time limit of September, 1956, which we had suggested. This would be Circuit Judge Potter Stewart's solution in 1958 in a similar case in Hillsboro, Ohio. However, I cannot recall whether this was argued in the Brown case.
1953 TOPEKA DECISION
Although we vigorously denounced the policy of gradualism in the briefs we submitted, we privately feared that that path was inevitable as far as implementation of Brown was concerned.
In September, 1953, before the Court's 1954 decision, the Topeka, Kan., school board had adopted a resolution to the effect that its schools would be desegregated as rapidly as practicable. At the time of the second reargument, only 15 per cent of the 700 Negro elementary school children out of a total elementary school population of 8,500 had been admitted to white schools in Topeka. There segregation had not even been compelled by the state; it was simply permitted in the elementary schools and, in addition, only in city school districts.
Topeka was at the opposite end of the spectrum with relation to communities like Clarendon County, South Carolina, and Prince Edward County, Virginia, where segregation was compulsory and black pupils greatly outnumbered white pupils in the public school population.
NEW NAME FOR GRADUALISM
The phrase – "with all deliberate speed" – was indeed unfamiliar but, at the same time, its deja vu quality was inescapable. It required no crystal ball to discern that gradualism had a new name and the South had a license for delay.
That then unfamiliar phrase ushered in the era of tokenism. Pupil assignment and grade-a-year plans suggested by the federal government in its amicus curiae brief on the first reargument were devices by which tokenism was effected. Gradually, and with agonizing frustration, a few more black students were admitted to all-white schools. It soon became apparent that we would have to force a broader implementation of Brown.
We then became "disestablishmentarians." We commenced framing complaints in school desegregation cases in which we requested in our prayers for relief the "disestablishment" of the dual school systems and the merging of these separate entities into a unitary system. We argued that Brown imposed on school officials operating dual school systems an affirmative duty to take action to merge the two systems; and that Brown was not simply a prohibition against denying a black student who might apply for admission to a white school. This argument fell on some other deaf ears.
Most southerners had undoubtedly come to believe in 1959, when we first advocated "disestablishmentarianism," that the worst result one could expect from the Supreme Court's decision was some blacks in school with whites. And the majority of the white population in the rest of the country probably hoped we would accept this new compromise of constitutional rights, especially after federal troops had to be sent into Little Rock to enforce the right of a few black children to enter the high school there.
This narrow view of the impact of Brown had also settled upon a large part of the black community which found the price of desegregation too high. For example, schools in Little Rock had been closed for a time; the University of Georgia had also been temporarily closed in a back-breaking effort to secure the admission of two students; all schools in Prince Edward County had been closed and remained closed for a decade; the best black teachers were being assigned to white schools; the best black students were being admitted to white colleges; and the best black pupils were being assigned under pupil assignment to white schools. This more restricted view of Brown thus became a major roadblock to wider implementation.
Our best-laid plans for speeding desegregation were derailed, however, not only by the unfamiliar phrase with which we had to deal but by the confluence of many other foreseen and unforeseen events. As blacks began marching to the beat of a different drummer, the South could not believe its ears. It retaliated with massive resistance to school desegregation as promised. We had been forewarned of massive resistance in the Deep South, but we did not know when or where it would strike or what form it would take.
We did not realize, for example, that by pushing for desegregation on the college level in Alabama and by supporting the Montgomery bus boycott in 1956 we would bring on retaliatory action from state authorities which would have the effect of barring the NAACP from operating in Alabama for years. Alabama invoked its foreign corporations law and demanded the membership list. Other states instituted legislative investigations of NAACP and LDF.
Antiquated legal concepts such as barratry, champerty and maintenance were resurrected and reenacted into law in Virginia in an attempt to castrate the legal effort which culminated in the Brown decision and to prevent its implementation and expansion into other areas of the public life. These terms, aimed at controlling the conduct of lawyers as well as laymen, embodied prohibitions against stirring up litigation, financing of law suits, and "ambulance chasing."
Plaintiffs and prospective plaintiffs in school desegregation cases were visited with economic reprisals. Others were frightened off by the mere prospect of such reprisals. Negro teachers and principals, an important segment of the economic life line of the black communities, were threatened with retrenchment.
We had not anticipated that the black community in Montgomery, Ala., would spontaneously strike out on its own desegregation program in 1956 and spark the anti-segregation revolution in the black community for which Brown had provided the momentum. We had anticipated bringing suits in the Deep South after Brown to desegregate other public facilities but our sainted Rosa Parks "jumped the gun." The suit for admission of two Negro women to the University of Alabama filed in 1955 had been proceeding peacefully until then. Suddenly, massive resistance emerged with some more unfamiliar phrases – "nullification and interposition" – as well as threats of violence and official outbursts of defiance of the courts.
GOVERNMENT INACTION
The lack of strong support for the Brown decision in 1954 and the years immediately thereafter on the part of the Executive Branch of the national government not only fed ambivalence about the correctness of the decision, but it emboldened Southern governors and state legislators. An avalanche of anti-Brown statutes had to be declared unconstitutional. Our caseload was mounting. Big money was hard to come by.
The Internal Revenue Service was persuaded in 1956 that the NAACP should divest itself of the formidable tax-exempt Legal Defense Fund lest that tax exemption be taken away. This was a highly sophisticated body blow to the organization and its legal arm, inflicted by the national government. It frightened the leadership, led to internal organizational strife which greatly weakened both organizations, wrecked all plans for building black and white community support and for an orderly, coordinated progression of school desegregation lawsuits and lawsuits in other areas.
ROLE OF LAWYERS
One of the things we had learned by 1965, when these Northern school cases got under way, was that we lawyers could not control the course of history. Our role was simply to represent those who demanded action by the state. Moreover there were many school situations in the North resulting from school board action, and the action of other public officials, which were clearly within the contemplation of Brown.
The "freedom riders" ignited the flames of massive resistance in Mississippi. That official
resistance collided head on with our efforts to gain the admission of a single Negro to the University of Mississippi. Although we had been preparing the suit for months, when I walked into friendly Judge Mize's courtroom in the federal District Court in Jackson a few days after the freedom riders had arrived, he remarked to me that we had picked the wrong time to file any such suit. He had remembered me from 1949 when Judge Robert L. Carter and I filed suit to equalize Negro teachers' salaries in Jackson, the first black lawyers Mississippi had seen in court since, perhaps, Reconstruction.
The admission of James Meredith to the University of Mississippi cost the federal government millions of dollars. When I received an invitation a year or so ago from the black law students at the university to speak at the law school, although I could not go to see for myself how the university had changed, I had long since concluded that the price of Meredith's admission was right.
A NEW FIGHT
When the freedom riders and sit-inners moved to center stage in 1960, all school desegregation suits in the South were virtually abandoned by our small, overworked LDF staff to take on a new and equally difficult legal battle. Plessy v. Ferguson, the case which upheld separate but equal railroad cars, had to be overruled. The Civil Rights Cases of 1883, which held the Civil Right Act of 1875 unconstitutional, had to be reargued. The 1875 act had been designed to secure the rights of blacks in privately-owned places of public accommodation. Injunctions against Martin Luther King from Albany, Ga., in 1962 to Selma, Ala., in 1965 had to be vacated. The hundreds of jailed freedom riders and sit-inners also had to be defended against local prosecutions.
DEATH OF MEDGAR EVERS
When Medgar Evers was killed in Jackson that summer, I gave Mississippi up "for dead." I had been there twenty-two times on the University of Mississippi case alone and so I figured my nine lives had run out. I shall never forget that trip from Jackson to the federal courthouse in Meridian during the Meredith case.
We were on our way to the courthouse to file a contempt of court action against the Governor of Mississippi who had called for massive resistance on the part of every Mississippi official.
Medgar was driving, as he had done so often. I sat beside him in the front seat. My secretary and James Meredith sat on the back. When he came to a familiar stretch of road running through a deserted wooded area Medgar said, "Don't turn around now, but we are being followed by a state trooper." James Meredith's admission to the University of Mississippi cost the black community Medgar Evers' life.
By the time we got back to more than 100 pending school desegregation cases in 1965, the Brown decision was well on its way to being effectively overruled by the in-migration of blacks to the decaying central cities and the out-migration of whites to new suburban communities.
When we filed suit to desegregate the public schools in Atlanta, Ga., in 1958, for example, the school population was about 40 per cent black and 60 per cent white. Today, the school population in Atlanta is about 80 per cent black. Atlanta now has a black superintendent of schools and a black mayor. Thus, while everything else in the public life of Atlanta is desegregated twenty years after Brown, the schools are not. In New York City, whites are now considered a minority in the school system.
NO SEGREGATION PLAN
In the Deep South no school board came forward with a plan of its own to desegregate its schools. A law suit had to be brought in virtually every instance if any movement toward desegregation was to be expected.
Most black parents remained fearful for the safety and emotional well being of their children and black teachers continued to see only job losses for their ranks. Relief from the impossible task of trying to carry a nationwide load of school desegregation suits came for the hard pressed LDF lawyers in the form of Congressional authorization for school desegregation suits by the Civil Rights Act Of 1964. Of course, executive action with respect to the bringing of lawsuits is wholly dependent on the domestic policy of the then current administration but this monumental piece of legislation meant that the national congress had once again assumed its responsibility to enact legislation to enforce the Fourteenth Amendment.
The years have indeed gone by. It is now twenty years after the Supreme Court said segregation of Negro children in the public schools generates "a feeling of inferiority" in them "as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone." In the massive de facto segregated school systems in urban America today, children of the "black-is-beautiful" era view pictures in their black studies classes of black members sitting on the Supreme Court, in the halls of Congress, in the President's cabinet, and at posts in all levels of federal, state, and local governments. The status of blacks in the national community since Brown has changed visibly.
IMPACT OF "BROWN"
To the extent that opportunities for blacks to move into the mainstream increase, Brown is implemented. Moreover, television which seems to have as much impact as elementary schools on the minds of young children, now portrays blacks as people who use the same toothpaste as their white counterparts, eat the same cereals, and buy the same patent medicines.
It seems that today Brown has little practical relevance to central city blacks. Its psychological and legal relevance have already had their effect. Central city blacks seem more concerned now with the political and economic power accruing from the new black concentration than they do with busing to effect school desegregation. The dilemma for these blacks is real. It is diversified, but there is now a new national black community with pride in itself and its accomplishments.
In addition, it appears that it may be meaningless to talk about feelings of inferiority to a black youth in the central city where blacks no longer consider themselves inferior to whites and no longer believe that any institution which is all white is necessarily good and ought to be integrated.
Brown has been a second "Emancipation Proclamation" in that it has freed blacks from their own feelings of inferiority and absolved the white leadership class of its feelings of guilt. Thus, the rationale for Brown may have slipped away. It may need a new rationale that goes something like this: Segregation is bad because the only way blacks can get an equal education is to go where the money is.
A CONCESSION
We conceded in the Brown cases that the facilities provided black children were equal to those provided white children. We did this because we sought to eliminate any possibility for another decision based upon separate but equal. We wanted the Court to rule squarely on the issue of segregation itself. There had been enough cases like the Texas and Oklahoma cases based upon a finding that equal facilities had not been provided for blacks. We also had the feeling (as a result of this series of cases which began in 1936 with the admission of Donald Murray to the law school of the University of Maryland pursuant to an order of the highest court of that state) that the time had come for black Americans to claim Charles Sumner's legacy. Our concession has been construed, it seems, as a prohibition against looking anew at the physical equity issue in all black central city schools.
Consequently, as for the future, it appears there are two very difficult legal problems ahead stemming from Brown. One is that posed by the quality of education afforded the black poor in segregated inner city schools. The other is that presented by the presence of a new black middle class seeking "reparations" when it comes to admissions to higher educational facilities and when it comes to job opportunities in the school system's upper echelons.
In retrospect, it is difficult now to say whether desegregation of the public schools would have progressed more rapidly if the Supreme Court had adopted petitioner's view of the type of relief to which they were entitled and had never invoked the phrase "with all deliberate speed." What can be said with some certainty is that without Brown there would not have been a civil rights revolution.