March 24, 2009 Brown vs. Board, Govt. vs. People: The Curious Course Of The Desegregation Wars
If you’re like me, you learned that
“segregation”
was an
unmitigated evil before you were
old enough to pronounce the word correctly. A whole
generation of us got our first lesson in
Constitutional jurisprudence from the early 1970s
rock group
Three Dog Night—
The ink is black
Even sober legal scholars lapse into religious language when dealing with
Brown vs. the
Board of Education.
“The justices
of the Supreme Court,” according to
Law Professor Michael J. Perry [Email
him]as cited by historian Raymond Wolters in his new
book Race and Education 1954-2007
Others quoted by Wolters liken desegregation’s crusaders to Joshua—making
walls tumble down and leading people into the Promised
Land of American public schools. So
sacrosanct has the landmark 1954
Brown vs. Board of Education decision become
that no judge can be confirmed for a federal appointment
today without paying it lip service.
Even Wolters
reassures the average reader with a few conventional
phrases:
Brown
“condemned an entrenched injustice [and] reconciled the nation’s official policies with its basic principles”.
()But he demonstrates conclusively that the legal
reasoning behind the decision was spurious and many of
its later outgrowths problematic or negative.
Before deciding the Brown case,
the Supreme Court asked the NAACP’s lawyers for evidence
that the framers of the 14th Amendment had
contemplated school desegregation. The Court, it seems,
wanted to rule against segregation but feared being
accused of the sort of judicial activism which several
of the justices had denounced during the years of the
New Deal.
The NAACP commissioned historian Alfred H. Kelly, who quickly discovered
that the very
Congress which submitted the
14th Amendment to the States had itself
established segregated schools in the District of
Columbia! Kelly later described how he had
“manipulated history…carefully marshalling every scrap of evidence in
favor of the desired interpretation and just as
carefully doctoring all the evidence to the contrary,
either by suppressing it when that seemed plausible, or
by distorting it when suppression was not possible.”
[Clio
and the Court: An Illicit Love Affair, by
Alfred H. Kelly, Supreme Court Review, 119 (1965)]
Afraid bad history would be insufficient, the NAACP mixed in some bad
social science. Black psychologist
Kenneth B. Clark reported that nine out of sixteen
Black children from segregated schools in South Carolina
preferred to play with a white rather than a black doll.
Clark did not mention that his study of desegregated
black children found the same phenomenon. But citing
this crude experiment as “modern authority,” the Supreme Court decided that the segregation
of Black pupils imposed upon them
“a feeling of
inferiority… that may affect their hearts and minds in a
way unlikely ever to be undone.”
In actual fact, segregation had served to
spare blacks invidious comparisons with whites. Later studies,
reported by Wolters, confirmed that black children in
segregated schools had
higher self-esteem than those in majority-white
schools.
By its appeal to sociology, Brown
set a precedent for deciding cases on extralegal
grounds.
Segregationists, who had at first based their case on
eighty years of legal precedent, soon responded with
scientific evidence of their own. (Wolters reports that
a reviewer for
his publisher, the University of Missouri Press, was so
disturbed by the objective tone in which Prof. Wolters
recounted these segregationist arguments that he
recommended not publishing the book unless the author
disavowed them!)
In
Stell v. Savannah (1963), segregationists
produced expert witnesses to testify that
“the differences between the two racial groups in a variety of mental
tests are
so large, so regular and so persistent under all
sorts of conditions that it is almost unthinkable to
conclude that they are entirely a matter of
environment.” [Henry
E. Garrett, "Negro- White Differences in
Mental Ability in the United States,"
Scientific Monthly 65, 9 October, 1947]
Wesley Critz George, a distinguished professor of
anatomy explained to the court that
the average weight of the brains of Caucasians was about 1,380 grams,
that of Negroes about 1,240 grams, with the difference
especially pronounced in the prefrontal area where
abstract thought occurred.[Wolters,
p. 36]
This evidence was powerful enough, Wolters reports,
to cause NAACP attorney Constance Motley “to
weep audibly in the courtroom.” [Race
and Reality, by
Carleton Putnam, Chapter IV]
Despite having won Brown on the
basis of extralegal evidence, the NAACP now did an
about-face and tried (unsuccessfully) to get scientific
testimony excluded from the case as irrelevant. The
presiding judge in
Stell v. Savannah ruled in favor of the
segregationists. (His ruling was overturned on appeal.)
The quest for “integration”
now entered its second phase. For more than a decade
after Brown, “desegregation”
was not understood to require integration.
Well-established residential patterns meant that many
schools would continue to be virtually all-white or
all-black even without practicing racial discrimination.
Desegregation meant merely that a child could not be
excluded from the local public school on the grounds of
race. But it did not mandate racial mixture in schools.
This distinction between desegregation and integration was made
explicitly and repeatedly by the courts, and was written
into the Civil Rights Act of 1964. Prof. Wolters
considers it both clear and valid. But most legal
scholars now disagree; they reject or ignore the
distinction and (at least nominally) interpret
Brown to
require racial mixing. How did this change come about?
After ten years of resistance, the South grudgingly accepted
Brown in the
wake of the 1964 Civil Rights Act, which tied federal
funding to desegregation. Most districts adopted a
“freedom
of choice” policy, allowing students to attend
any school they wished. Typically, this resulted in a
few Negro children transferring to previously all-White
schools; transfers in the opposite direction were almost
unheard of.
However, a significant faction within the Civil Rights movement (and
increasingly within the government bureaucracy) was
unsatisfied with these modest changes. It would settle
for nothing less than full integration. Some were
inspired by
Equality of Educational Opportunity,
a seven-hundred page study produced under the direction
of sociologist James S. Coleman and commonly called the
“Coleman report.” This document, issued in 1966,
was interpreted to imply (among other things) that when
blacks attended majority white schools, their academic
performance improved without the performance of whites
declining.
That same year, the federal Office of Education issued a new set of
guidelines for enforcing desegregation. The guidelines
stated:
“The single most substantial indication as to whether a free-choice plan
is actually working is the extent to which Negro or
other minority group students have in fact transferred
from segregated schools.”
[United States Commission on Civil Rights,
Federal Rights Under School Desegregation Law, June
1966,PDF]
The document went on to specify that a school would not be considered
desegregated unless the amount of racial mixing
doubled each year until racial balance was achieved! One southern
Senator,
Richard B. Russell, described
the new guidelines as
“fanaticism at
its very zenith”. Wolters argues that the Office of
Education knew perfectly well that it was changing the
meaning of the law.
Court challenges quickly followed, with the Fourth Circuit rejecting the
guidelines and the Fifth Circuit upholding them. Then,
in the case of
Green v. New Kent County
(1968), the Supreme Court unanimously
sided with the Fifth Circuit and ordered southern school
districts to assign students by race in order to achieve
substantial integration. The court had overturned
Brown while
claiming to uphold it.
It was in response to the Green
decision that a judge in Charlotte, North Carolina
imposed a busing program to disperse the races until no
school was recognizably black or white. The Supreme
Court reviewed the case and upheld the ruling in
Swann v.
Charlotte-Mecklenburg
(1971). The justices specifically
endorsed means such as busing and the gerrymandering of
school districts to bring about integration. But they
also cautioned that such integration was mandated only
in order to remedy past segregation, rather than as an
end in itself. As a result, the ruling applied mainly to
the South.
Nevertheless, within two years the Supreme Court was requiring
integration in Denver in order to
“remedy”
de facto
segregation determined by residential patterns (Keyes
v. School District No. 1).
In Detroit plans were soon afoot to combine the black city districts with
fifty-three white suburban districts. The new
consolidated school district was so large that some
children would have been bused
three hours each day.
At this point, finally, the Supreme Court flinched before the monster it
had wrought—and possibly
“followed the election returns”, in the shape of
the
George Wallace phenomenon and the Nixon presidency.
In
Milliken v. Bradley (1974), a 5-4 majority voted
to reverse and censure the lower courts for having
mandated the Detroit integration program.
As Prof. Wolters summarizes:
“Brown had been the watershed
of school desegregation.
Green,
Swann and
Keyes represented the high tide for integration.
Milliken
marked the water’s edge.”
Integration was a failure. It did nothing to improve the performance of
black schoolchildren (as even James S. Coleman
came to concede in a 1978 paper noted by Wolters).
It wasted untold money and time. It sparked massive
white flight. And it created deep resentment among
both blacks and whites. Blacks perceived white academic
achievement as a form of
“showing off”
intended to make them feel inferior. The minority of
blacks who did keep up with whites got accused of being
“sellouts.”
Whites were put off by black rowdiness, profanity
and—sometimes—misconduct toward white girls. Prof.
Wolters documents the entire fiasco with a wealth of
detail I can only hint at here.
In integration’s third phase, which still continues, the Supreme Court in
a series of rulings issued between 1991 and 2007 has
moved gradually back toward the original understanding
of Brown. But
by this time, there were fewer whites left in many
public school districts for blacks to integrate with
anyway—and those remaining were disproportionately
poorer and disadvantaged.
Prof. Wolters shares a common tendency to identify education with
public education.
Private schools receive passing mention in his
narrative only to explain the otherwise mysterious
disappearance of wealthier white students following
Brown.
Yet judicial meddling in education was only made possible by that great
egalitarian reform of a previous era, public schooling.
Race in education became a political issue because
education itself had long since been politicized by
governmental takeover. This might be a matter worth
Prof. Wolters’ attention in writing his promised next
book on the subject of educational reform. F. Roger Devlin [Email him] is a contributing editor for The Occidental Quarterly and the author of Alexandre Kojeve and the Outcome of Modern Thought. |
,
“were
modern ‘prophets’ selected by an ‘American Israel’ and
authorized to strike down laws they deemed mistaken.”