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If you are not located in the United States, you -will have to check the laws of the country where you are located before -using this eBook. - -Title: The Southern Case for School Segregation - -Author: James Jackson Kilpatrick - -Release Date: June 5, 2021 [eBook #65518] - -Language: English - -Character set encoding: UTF-8 - -Produced by: Tim Lindell, John Campbell and the Online Distributed - Proofreading Team at https://www.pgdp.net (This book was - produced from images made available by the HathiTrust Digital - Library.) - -*** START OF THE PROJECT GUTENBERG EBOOK THE SOUTHERN CASE FOR SCHOOL -SEGREGATION *** - - - - - TRANSCRIBER’S NOTE - - Italic text is denoted by _underscores_. - - Footnote anchors are denoted by [number], and the footnotes have been - placed at the end of the book. - - Some minor changes to the text are noted at the end of the book. - - - - - _James Jackson Kilpatrick_ - - THE SOUTHERN - CASE FOR SCHOOL - SEGREGATION - - - _The Crowell-Collier Press_ - - - - - First Crowell-Collier Press Edition 1962 - - - Library of Congress Catalog Card Number: 62-17492 - Copyright © 1962 by The Crowell-Collier Publishing Company - All Rights Reserved - Hecho en los E.E.U.U. - Printed in the United States of America - - - - -Contents - - - INTRODUCTION 7 - - - Part I - - THE EVIDENCE 13 - - - Part II - - THE LAW 105 - - - Part III - - PRAYER OF THE PETITIONER 183 - - APPENDIX 197 - - - - -Introduction - - -_May it please the court_: - -When this book was conceived, it was intended to be titled “U.S. -v. the South: A Brief for the Defense,” but it seemed a cumbersome -title and the finished work is not, of course, a brief for the South -in any lawyer’s sense of the word. It is no more than an extended -personal essay, presented in this form because the relationship that -exists between the rest of the country and the South, in the area of -race relations, often has the aspect of an adversary proceeding. We -of the South see ourselves on the defensive, and we frequently find -ourselves, as lawyers do, responding in terms of the law and the -evidence. - -It is an unpleasant position for the South, which regards itself as -very much a part of the American Republic, and it is an uncomfortable -position also: We find ourselves defending certain actions and -attitudes that to much of the country, and to much of the world, -appear indefensible; some times we are unsure just what it is we are -defending, or why we are defending it. We would like to think more -upon these questions, but in this conflict there seldom seems to -be time for thought or for understanding on either side. When one -side is crying “bigot!” and the other is yelling “hypocrite!,” an -invitation to sit down and reason together is not likely to draw the -most cordial response. - -This brief for the South, as any brief must be, necessarily is a -partisan pleading. My thought is to present the South’s case (with a -few digressions, irrelevancies, reminiscences, obscurities, and mean -digs thrown in), but I hope to present it fairly, and without those -overtones of shrill partisanship that drown out the voice of reason -altogether. And it seems to me, if the suggestion may be advanced -with due modesty, that a Virginia Conservative is perhaps in an -unusually advantageous position to write such a brief. By tradition, -inheritance, geography, and every intangible of the spirit, Virginia -is part of the South. The Old Dominion, indeed, is much closer to -the “Old South” than, say, North Carolina or Florida. Richmond was -for four years the capital of a _de facto_ nation, the Confederate -States of America; to this day, our children play soldier in the -trenches and romp happily on the breastworks left from the bloody -conflict in which the CSA were vanquished. The Confederacy, the -War, the legacy of Lee--these play a role in Virginia’s life that -continues to mystify, to entrance, sometimes to repel the visitor to -the State. Virginia’s “Southernness” reaches to the bone and marrow -of this metaphysical concept; and if Virginia perhaps has exhibited -more of the better and gentler aspects of the South, and fewer of the -meaner and more violent aspects, we nevertheless have shared the best -and the worst with our sister States. On questions of race relations, -of school segregation, of a _modus vivendi_ tolerable to black and -white alike, Virginia’s views have been predominantly the South’s -views. - -Yet it is evident, as this is written, that the immediate battle -over school segregation has passed Virginia by. The Old Dominion no -longer struggles in the arena; we watch from the grandstand now. The -desegregation of our public schools has been accepted in principle; -a State Pupil Placement Board voluntarily has assigned hundreds of -Negro children to schools that formerly were white schools. In our -largest cities, most department-store dining facilities, in theory -at least, serve any customer who asks to be served. Segregation has -ended in transportation facilities, in libraries, in parks, in most -places of public assembly. Negroes register and vote freely. It is -true of Virginia, I believe, that the more things change, the more -they stay the same; down deep, very little has changed. But by and -large, Virginia has been eliminated from the fight. I wrote one book -about the South a few years ago, when Virginia was still in the thick -of it, and I was on horse and the pen was a lance. The sidelines -offer a better perspective. - -A word of definition is in order. When I speak in this essay of “the -South,” what I mean is the white South, and more narrowly still, -I mean the white adults of thirteen States who continue to share, -in general, an attitude on race relations that has descended from -attitudes of the “Old South.” There is, of course, a Negro South, -but it is mysterious and incomprehensible to most white men. And -there is a Liberal South, comprising a large number of white persons -who oppose racial segregation in principle if they seldom oppose it -in daily practice. These groups have their own able and articulate -spokesmen; they have filed their own briefs by the dozen. And it is -simply to avoid interminable qualifications--“most white Southerners -feel,” or “the large preponderance of opinion among white adults in -thirteen Southern States holds”--that I here define “the South” for -my own immediate purposes. - -With those preliminary remarks, let me turn, if I may, by slow -degrees, to argument on the case at bar. - - JAMES JACKSON KILPATRICK - - Richmond - May 1962 - - - - -Part I - -The Evidence - - - - -I - - -At the time of the Supreme Court’s opinion in _Brown_ v. _Board -of Education_, on Monday, May 17, 1954, seventeen Southern and -border States maintained racially separate schools. These included, -in addition to the thirteen States to be treated here as “the -South,” the States of Maryland, Delaware, Kansas, and Missouri, -plus the District of Columbia. Each of the five speedily abandoned -segregation--Kansas willingly, Missouri stoically, Maryland -cheerlessly, Delaware grudgingly. The District abandoned segregation; -white parents abandoned the District, and by 1962 an 82 per cent -resegregation could be observed in the schools. _Sic transit gloria_ -Monday. None of the four States was in any real sense a part of the -South; their constitutional or statutory requirements for segregated -schools were appendages more or less ripe for the clipping. And -though southern Missouri and the Delaware shore submitted to -desegregation with some bitterness, the surgery was not especially -painful and the operations, on the whole, were uneventful. - -This essay is concerned chiefly with the other thirteen States, with -attitudes and practices that then prevailed widely in all of them and -still prevail overwhelmingly in some of them: the States of Alabama, -Arkansas, Florida, Georgia, Kentucky, Louisiana, Mississippi, North -Carolina, Oklahoma, South Carolina, Tennessee, Texas, and Virginia. A -possibly more definitive list might eliminate Oklahoma and Kentucky -from this neo-Confederate fold; their Negro populations comprise no -more than 6 or 7 per cent of the State total, and Oklahoma looks to -the Southwest while Kentucky (mildly anesthetized by Mr. Bingham’s -Louisville _Courier-Journal_) looks nowhere in particular. Yet I -myself was reared in Oklahoma, and I know at first hand of the -intensely Southern sentiment that still obtains in much of the State; -my Kentucky friends write me poignantly, as one writes from East -Berlin or Poland, asking CARE packages and seeking prayers, and I -judge that many Kentuckians continue to look upon integration as they -might look upon orange slices in a julep. They will drink the horrid -thing, but their sense of propriety is outraged. - -These thirteen States together make up a fascinating part of the -American Republic. Their combined area amounts to nearly 863,000 -square miles, or about 28 per cent of the continental United States. -The 1960 census found in them 48,802,000 persons, of whom 24,036,000 -were males and 24,755,000 were females; and, more to our point, the -census found in them 38,404,000 white persons, 10,231,000 Negro -persons, and 167,000 other nonwhites, mostly Indians in Texas, -Oklahoma, and North Carolina. - -The census of 1960 turned up a great many other figures useful to an -understanding of the American South. Some of these are best presented -in tabulated form. These figures, for example, bear close study: - - NEGRO POPULATION, THIRTEEN SOUTHERN STATES, 1900-1960 - - _Per cent Total Pop._ _Per cent_ _Number_ - _State_ _1900_ _1920_ _1940_ _1960_ _1960_ - ---------------------------------------------------------------- - Alabama 45.2 38.4 34.7 30.0 980,271 - Arkansas 28.0 27.0 24.7 21.8 388,787 - Florida 43.7 34.0 27.1 17.8 880,186 - Georgia 46.7 41.7 34.7 28.5 1,122,596 - Kentucky 13.3 9.8 7.5 7.1 215,949 - Louisiana 47.1 38.9 35.9 31.9 1,039,207 - Mississippi 58.5 52.2 49.2 42.0 915,743 - North Carolina 33.0 29.8 27.5 24.5 1,116,021 - Oklahoma 7.0 7.4 7.2 6.6 153,084 - South Carolina 58.4 51.4 42.8 34.8 829,291 - Tennessee 23.8 19.3 17.4 16.5 586,876 - Texas 20.4 15.9 14.4 12.4 1,187,125 - Virginia 35.6 29.9 24.7 20.6 816,258 - - The U.S.A. 11.6 9.8 9.8 10.5 18,871,831 - -The Negro component within the American Union, it is evident, remains -today about what it has been all along. Within the Southern States, -the Negro population is dropping steadily as a percentage of the -whole. Negroes comprised 11.6 per cent of the nation’s total in -population in 1900, 9.7 per cent in 1930, and 10.5 per cent in 1960. -But this 10.5 per cent of 1960 has shifted dramatically across the -nation. Of 18,872,000 Negroes, 8,641,000 or 46 per cent, were living -in 1960 outside the thirteen States of the South. There were more -Negroes in New York City (1,227,000) than in all of Mississippi or -Alabama. Philadelphia turned up 26.4 per cent Negro; Georgia is 28.5 -per cent Negro. Chicago counted almost as many Negroes in its city -limits (813,000) as there were in the whole of Virginia (816,000), -and they represented a larger part of the total--a concentrated 23 -per cent in Chicago, a scattered 21 per cent in Virginia. - -Between 1950 and 1960, the Census Bureau has reported, the South -experienced a net out-migration of about 1,457,000 Negroes. The -figure represents the number of Negroes that census enumerators -of 1960 would have expected to find in the South if the Negro -populations of 1950 had stayed put and had experienced a normal -increase of births over deaths. Alabama, which should have gained -225,000 Negroes on this basis, gained only 1000 in the decade; South -Carolina, which normally would have gained 226,000 Negroes, gained -only 8000. Mississippi actually experienced a net loss in Negro -population, from 986,000 in 1950 to 915,000 in 1960. - -Where did these Negro migrants go? To the North, primarily--more than -a million of them. Others went west: California experienced a net -in-migration of 354,000 Negroes. Large numbers moved to Illinois, -Ohio, and Michigan. The migration was almost entirely to Northern -cities, and ironically, to urban societies of the North almost as -segregated by geography as the Old South is segregated by custom. - -Yet for all the steady decline of Negro components in Southern -States, it still is true that the South, as a region, houses the -largest concentration of colored citizens. Of the fifteen States that -in 1960 had more than 500,000 Negro residents, all but four (New -York, Illinois, Pennsylvania, and New Jersey) were in the South. The -thirteen Southern States that were 35 per cent Negro in 1900 were -still 21 per cent Negro in 1960, and in 140 Southern counties, white -residents in 1960 remained numerically in the minority. - -Consider some further statistics: - - URBAN AND RURAL POPULATION - THIRTEEN SOUTHERN STATES, 1900-1960. - - _State_ _Urban 1960_ _Rural 1960_ _Total 1960_ - Alabama 1,791,721 1,475,019 3,266,740 - Arkansas 765,303 1,020,969 1,786,212 - Florida 3,661,383 1,290,177 4,951,560 - Georgia 2,180,236 1,762,880 3,943,116 - Kentucky 1,353,215 1,684,941 3,038,156 - Louisiana 2,060,606 1,196,416 3,257,022 - Mississippi 820,805 1,357,336 2,178,141 - North Carolina 1,801,921 2,754,234 4,556,155 - Oklahoma 1,464,786 863,498 2,328,284 - South Carolina 981,386 1,401,208 2,382,594 - Tennessee 1,864,828 1,702,261 3,567,089 - Texas 7,187,470 2,392,207 9,579,677 - Virginia 2,204,913 1,762,036 3,966,949 - - _Per cent Rural_ - _State_ _1900_ _1920_ _1940_ _1960_ - Alabama 89.0 78.3 65.2 45.2 - Arkansas 91.5 83.4 77.2 57.1 - Florida 79.7 63.5 44.9 26.0 - Georgia 84.4 74.9 65.6 44.7 - Kentucky 78.2 73.8 70.2 55.4 - Louisiana 74.5 65.1 58.5 36.7 - Mississippi 92.3 86.6 80.2 62.3 - North Carolina 91.1 80.8 72.7 60.4 - Oklahoma 92.6 73.5 62.4 37.0 - South Carolina 87.2 82.5 75.5 58.8 - Tennessee 86.5 73.9 64.8 47.7 - Texas 82.9 67.6 54.6 24.9 - Virginia 81.7 70.8 64.7 44.4 - -These figures, as I hope to demonstrate after a while, should be -treated with some reserve, but on their own they tell a revolutionary -tale. Of the twelve States that were firmly rural in 1940, only North -and South Carolina, Kentucky, Arkansas, and Mississippi were found -predominantly rural in 1960. This migration from the countryside has -seen the number of farms in the South drop from 3,100,000 in 1910 to -1,650,000 in 1959; the number of farms either owned or operated by -Negroes has dropped from 890,000 to 272,000 in the same period. - -In many aspects, to be sure, the census of 1960 found the South -hardly changed at all. The region still is composed overwhelmingly -of native-born Americans; except for Florida and Texas, none of the -thirteen States has as much as four-tenths of 1 per cent foreign-born -population. Southerners still are moving out of the South more -rapidly than non-Southerners are moving in, but the Southern tendency -to stay put remains much in evidence: 90 per cent of the citizens of -Mississippi were born there, and the percentage is almost as high in -Alabama and the Carolinas. - -In terms of material wealth, our people remain relatively poor. Per -capita incomes in 1959 ranged from $1162 in Mississippi to $1980 in -Florida, against a national average of $2166. Wages in the thirteen -States then averaged $73.31 weekly and $1.82 hourly, far below -national averages of $90.91 and $2.29. As one consequence, housing -conditions are sadly below par. The 1960 census found, in the country -as a whole, 18.8 per cent of all dwellings “dilapidated or lacking -plumbing facilities”; the percentages were 49.2 in Mississippi, 44.9 -in Arkansas, and 41.2 in Kentucky; and no State outside the South -approached these poor ratings. - -The picture is not entirely bleak. Poor as they are, the Southern -States in general are exerting a much greater effort than their -wealthier Northern sisters. Over the country as a whole, State and -local governments in 1959 raised $102.12 per capita from their own -tax sources. Seven of the thirteen Southern States were far above -this average: Mississippi, for example, raised $128.76 per capita -from local sources, a figure that compares with $108.92 in New York, -$83.56 in Connecticut, and $81.51 in Delaware. With much less to -levy upon, the Southern States proportionately are pouring more into -their schools. And the outlook is brightening steadily. Between 1929 -and 1959, while the nation as a whole was increasing its per capita -personal incomes by 208 per cent, South Carolina was jumping 393 per -cent and Louisiana 280 per cent. - -Permit a few more statistics. The South’s traditional distaste for -government remains quite evident. Florida, Louisiana, and Oklahoma -have slightly more than the average number of State and local -government workers in terms of population, but the others are far -below the national average. The South has small appetite for the -welfare state; our relief rolls are large, owing chiefly to social -difficulties among the Negroes, but grants are kept relentlessly -low. Our people are churchgoers, in fantastic numbers. We continue -to produce more moonshine whiskey than any other region. In 1961, -there were 486 daily newspapers in the South, with a circulation of -12,500,000. Almost 40 per cent of the country’s radio stations are in -the South; North Carolina has more AM stations than the State of New -York, and Texas has more radio stations than anybody. - - -II - -The foregoing figures tell little enough, to be sure, about the -South; you learn nothing much about a sonnet by a footnote on its -rhyme scheme. For it is a truism that there is not one South; there -are, it is said, many Souths. - -Eighteen hundred miles separate the Rio Grande at El Paso from the -James at Hampton Roads. The intervening land is immensely varied. -The South begins, at its western rim, in canyon country, red-walled, -black-hilled; the bare and bony mountains stretch across the prairie -like the skeletons of dinosaurs. This is hard country, burned by the -sun and wrinkled by the unceasing wind; this is Texas, and almost -everything men say of it is true. Oklahoma, to the north, is a pocket -paper-back edition of its brawny southern neighbor. Both States -offer moments of surpassing beauty and long stretches of surpassing -dullness; they offer a splendid, lonesome emptiness of time and -space, and then, abruptly, the sophistication of Dallas and the busy -commerce of Oklahoma City and Houston. - -Coming east, one finds Arkansas, and below it Louisiana; Ozark -country, the endless foothills that never quite reach to the foot of -anything, to the south the flatlands and bayous, the white cranes -flying, the River, incredibly massive, the jeweled city one caresses -as a mistress in his dreams. - -Across the River, Mississippi and Alabama: cotton country, bottom -land, mules and iron; small towns that evoke in bank and clock and -feed store, in the inevitable bronze soldier standing guard in -courthouse square, the image of small towns everywhere; progress and -poverty, the hot breath of Birmingham, the Monopoly suburbs, their -roofs all in line and neat bibs of crab grass under their chins. - -On to the east, Georgia: red clay and cotton, the prosperous -incongruity of Atlanta, resting on the homely landscape like a -diamond stickpin on a shabby tie. To the south, the separate nation -that is Florida, post-card blue, lemon yellow, an old man nodding -on a St. Petersburg bench, a swamp child gazing from a quiet pier; -Miami, and the Beach, the liquid ripple of Cuban tongues; the -bonefish, silver as sixteenth notes in amethyst water. Back again to -the north: Tennessee, timbered, taciturn, green-hilled, the great -lakes of the TVA; Memphis and Knoxville and Nashville; the accent -that thins a short _e_ to a short _i_. Above Tennessee, Kentucky, -tied inescapably now to the North and Midwest, hard politics, soft -speech, burley tobacco, and good bourbon. - -To the east again, Virginia and South Carolina, with North Carolina -between them, “a valley of humility between two mountains of -conceit,” or more accurately, a peak of giddy-up between two valleys -of whoa. South Carolina is moss and small creeks, camellias, azaleas, -the rugs a little thin, the white tapers gleaming, ancestors on -the walls and Calhoun’s brooding spirit still alive, Camden and -Columbia, and a classic capitol still pocked by Yankee shells. To -the north, tobacco country; Charlotte, thrusting ahead, brief-cased, -snap-brimmed; universities, schools, textiles, furniture mills, the -black cypress quietude of the inland waterway. - -Finally, Virginia, stretching four hundred miles from her coal -country to her beaches; tobacco and peanuts; the gem that is -Williamsburg, the plantation country, the somnolent Northern Neck, -Mr. Jefferson’s University, the hunt country, the changelessly -changing capital city where I write. - -This land of ours is many-rivered, and the rivers have lovely -names: the Apalachicola, Chattahoochee, Pee Dee, Yadkin, Tombigbee, -Brazoo, Mobile, the York, the James, the Mattaponi. Our mountains -are mostly old, worn down, the edges rubbed off: the Blue Ridge, the -Alleghenies, the Great Smokies, the Ozarks. Our summers are hot and -humid; the winters are uninteresting outside of Florida; but spring -in the South is a cool _rosé_, and October in Virginia is a sparkling -champagne. I speak to the court in this brief, as Your Honors will -have noted, with an affection that ought perhaps to be brought back -in bounds; along with the most beautiful horses in the world, we have -some of the meanest mosquitoes south of New Jersey, an oversupply -of shif’less dogs, and vast quantities of stinging nettles; we have -sandflies, horned toads, and chiggers; we have our fair share of men -who give short weight, of bigoted men, unkind, intolerant; we are -given in a Cavalier South to drinking too much, and in the Bible -Belt, to drinking not enough; we have men who honk at traffic lights, -and women who giggle, and politicians who are full of wind; the -Southern Shintoism that is sometimes a blessing is as often a curse; -some of our cities are dirty, and most of our streets have lumps in -them. But this is the many-faceted, cloudy, crystalline compound -called the South. - -Yet, no, _it is not the South_. The truism of “many Souths” will not -stand too much weight. Every region in the country has its contrasts, -its extremes, its anomalies, its measurable differences. An essential -point can be missed in overconcentration on the Rural South, the -Urban South, the New South, the Old South, the Liberal South, the -Conservative South. There remains a great and well-understood meaning -simply in _the_ South; there is, in fact, a sense of oneness here, an -identity, a sharing, and this quality makes the South unique in ways -that New England, and the Midwest, and the West do not approach. The -Confederacy was, as a matter of law, a state in being; but it was -first of all, and still is, what so many observers have termed it: -a state of mind. And running through this state of mind, now loose -as basting thread, now knotted as twine, now strong and stubborn as -wire, coloring the whole fabric of our lives, is this inescapable -awareness: the consciousness of the Negro. - - -III - -How, in 1962, does one begin to discuss this awareness? _Mea culpa, -mea culpa, mea maxima culpa?_ No, perhaps, the best observation to -make at the outset is that the South, in general, feels no sharp -sense of sin at its “treatment of the Negro.” The guilt hypothesis -is vastly overdrawn. If wrong has been done (and doubtless wrong -has been done), we reflect that within the human relationship wrong -always has been done, by one people upon another, since tribal -cavemen quarreled with club and stone. And whatever the wrongs may -have been, the white South emphatically refuses to accept all the -wrongs as her own. For the South itself has been wronged--cruelly -and maliciously wronged, by men in high places whose hypocrisy is -exceeded only by their ignorance, men whose trade is to damn the -bigotry of the segregated South by day and to sleep in lily-white -Westchester County by night. We are keenly aware, as Perry Morgan -remarked in a telling phrase, of a North that wishes to denounce -discrimination and have it too. - -But let us begin gently. The Southerner who would grope seriously for -understanding of his own perplexing region, and the non-Southerner -who would seek in earnest to learn more than his textbooks would -tell him, cannot make a start with _Brown_ v. _Board of Education_ -on a May afternoon in 1954. Neither can he begin with _Plessy_ v. -_Ferguson_ in 1896, or with ratification of the Fourteenth Amendment -in 1868, or with Appomattox three years earlier. A start has to be -made much earlier, in 1619, when the first twenty Negroes arrived -from Africa aboard a Dutch slaver and fastened upon the South a -wretched incubus that the belated penances of New Englanders have not -expiated at all. - -We of the South have been reared from that day in a strange society -that only now--and how uncomfortably!--is becoming known at first -hand outside the South. This is the dual society, made up of white -and Negro coexisting in an oddly intimate remoteness. It is a way of -life that has to be experienced. Children mask their eyes and play -at being blind. Even so, some of my Northern friends mask their eyes -and play at being Southern; they try to imagine what it must be like -to be white in the South, to be Negro in the South. Novelist John -Griffin dyed his skin and spent three weeks or so pretending to be -Negro, looking for incidents to confirm his prejudices. But a child -always knows that he can take his hands from his eyes, and see, -that he is not really blind; and those who have not grown up from -childhood, and fashioned their whole world from a delicately bounded -half a world, cannot comprehend what this is all about. They wash -the dye from their imaginations, and put aside _The New York Times_, -and awake to a well-ordered society in which the Negroes of their -personal acquaintance are sipping martinis and talking of Middle -Eastern diplomacy. They form an image of “the Negro” (as men form -an image of the French, or the British, or the Japanese) in terms -of the slim and elegant Harvard student, the eloquent spokesman of -a civil rights group, the trim stenographer in a publishing office: -Thurgood Marshall on the bench, Ralph Bunche in the lecture hall. It -is a splendid image, finely engraved on brittle glass, an object of -universal admiration on the mantle of the _New Republic_. It is an -image scarcely known in the South. - -My father came from New Orleans. His father, a captain in the -Confederate Army, returned from the War and established a prosperous -business in ship chandlery there. And though I myself was born in -Oklahoma, Father having moved there just prior to World War I, -we children visited along the Delta in our nonage. We sailed on -Pontchartrain, and crabbed at Pass Christian, and once or twice were -taken from school in February to sit spellbound on Canal Street and -watch the Mardi Gras go by. Our life in Oklahoma was New Orleans once -removed; it was a life our playmates accepted as matter-of-factly as -children of a coast accept the tides: The Negroes _were_; we _were_. -They had their lives; we had ours. There were certain things one -did: A proper white child obeyed the family Negroes, ate with them, -bothered them, teased them, loved them, lived with them, learned -from them. And there were certain things one did not do: One did not -intrude upon their lives, or ask about Negro institutions, or bring -a Negro child in the front door. And at five, or six, or seven, one -accepted, without question, that Calline and Cubboo, who were vaguely -the charges of a Negro gardener up the street, had their schools; and -we had ours. - -Does all this have the air of a chapter from William Gilmore Simms or -a post-bellum romance by Thomas Nelson Page? I myself lived it, forty -years ago; my own sons have lived it in this generation. My father -lived it, and his father before him. For three hundred years, the -South has lived with this subconsciousness of race. Who hears a clock -tick, or the surf murmur, or the trains pass? Not those who live by -the clock or the sea or the track. In the South, the acceptance of -racial separation begins in the cradle. What rational man imagines -this concept can be shattered overnight? - -We had two Negroes who served my family more than twenty years. -One was Lizzie. The other was Nash. Lizzie was short and plump and -placid, and chocolate-brown; she “lived on,” in a room and bath -over the garage, and her broad face never altered in its kindness. -Nash was short and slim, older, better educated, more a leader; she -was African-black; and as a laundress, she came in after church on -Sundays, put the clothes down to soak in the basement tubs, gossiped -with Lizzie, scolded her, raised Lizzie’s sights. On Monday, the -two of them did the wash, hanging the clothes on heavy wire lines -outside the kitchen door, and late in the afternoon Nash ironed. She -pushed the iron with an economical push-push, thump; turn the shirt; -push-push, thump. And I would come home from school to the smell of -starch and the faint scorch of the iron and the push-push, thump, and -would descend to the basement only to be ordered upstairs to wash my -hands and change out of school clothes. - -Toward the end of their lives, disaster came to both of them. Lizzie -went slowly blind, through some affliction no surgeon could correct, -and Nash lost the middle three fingers of one hand when her scarf -tangled in the bellows of a church organ. Nevertheless, they stayed -with us until age at last put them on the sidelines. And as far as -love and devotion and respect can reach, they were members of the -family. Yet I often have wondered, in later years, did we children -know them? Did Mother and Father know them? I do not think we did. - -This relationship, loving but unknowing, has characterized the lives -of thousands of Southern children on farms and in the cities too. -White infants learn to feel invisible fences as they crawl, to sense -unwritten boundaries as they walk. And I know this much, that Negro -children are brought up to sense these boundaries too. What is so -often misunderstood, outside the South, is this delicate intimacy -of human beings whose lives are so intricately bound together. I -have met Northerners who believe, in all apparent seriousness, that -segregation in the South means literally that: _segregation_, the -races stiffly apart, never touching. A wayfaring stranger from the -New York _Herald Tribune_ implied as much in a piece he wrote from -Virginia after the school decision. His notion was that whites and -Negroes did not even say “good morning” to each other. God in heaven! - -In plain fact, the relationship between white and Negro in the -segregated South, in the country and in the city, has been far -closer, more honest, less constrained, than such relations generally -have been in the integrated North. In Charleston and New Orleans, -among many other cities, residential segregation does not exist, for -example, as it exists in Detroit or Chicago. In the country, whites -and Negroes are farm neighbors. They share the same calamities--the -mud, the hail, the weevils--and they minister, in their own unfelt, -unspoken way, to one another. Is the relationship that of master -and servant, superior and inferior? Down deep, doubtless it is, but -I often wonder if this is more of a wrong to the Negro than the -affected, hearty “equality” encountered in the North. In the years -I lived on a farm, I fished often with a Negro tenant, hour after -hour, he paddling, I paddling, sharing the catch, and we tied up the -boat and casually went our separate ways. Before _Brown_ v. _Board -of Education_, it never occurred to me that in these peaceful hours -I was inflicting upon him wounds of the psyche not likely ever to -be undone. I do not believe it occurred to Robert either. This is -not the way one goes fly-casting on a millpond, with Gunnar Myrdal -invisibly present on the middle thwart. We fish no more. He has been -busy in recent years, and I too; and when I came across the flyrod -recently, I found the line rotted and the ferrules broken. - -I say this relationship “has been,” and in the past perfect lies -a melancholy change that disturbs many Southerners deeply. In -my observation, a tendency grows in much of the white South to -acknowledge and to abandon, with no more than a ritual protest, many -of the patent absurdities of “Jim Crow.” Many of these practices, -so deeply resented in recent years by the Negro, may have had some -rational basis when they were instituted in the post-Reconstruction -period. When the first trolleys came along, the few Negroes who rode -them were mostly servants; others carried with them the fragrance -of farm or livery stable. A Jim Crow section perhaps made sense in -those days. But in my own nonage, during the 1920s, and in the years -since then, few Southerners ever paused to examine the reasons for -segregation on streetcars. We simply moved the little portable sign -that separated white from Negro as a car filled up, and whites sat -in front of the sign and Negroes sat behind it. This was the way we -rode streetcars. After _Brown_ v. _Board of Education_, when the -abiding subconsciousness of the Negro turned overnight into an acute -and immediate awareness of the Negro, some of these laws and customs -ceased to be subject to reason anyhow; they became, confusingly, -matters of strategy; they became occupied ground in an undeclared -war, not to be yielded lest their yielding be regarded as needless -surrender. Many aspects of our lives have gone that way since. The -unwritten rules of generations are now being, in truth, unwritten; in -their place, it is proposed by the apostles of instant integration -that there be no rules at all. It seems so easy: “What difference -does the color of a man’s skin make?” “Why not just treat them as -equals?” “There is no such thing as race.” - -Ah, but it is not so easy. The ingrained attitudes of a lifetime -cannot be jerked out like a pair of infected molars, and new -porcelain dentures put in their place. For this is what our Northern -friends will not comprehend: The South, agreeable as it may be to -confessing some of its sins and to bewailing its more manifest -wickednesses, simply does not concede that at bottom its basic -attitude is “infected” or wrong. On the contrary, the Southerner -rebelliously clings to what seems to him the hard core of truth in -this whole controversy: _Here and now_, in his own communities, in -the mid-1960s, the Negro race, as a race, plainly is not equal to -the white race, as a race; nor, for that matter, in the wider world -beyond, by the accepted judgment of ten thousand years, has the Negro -race, as a race, _ever_ been the cultural or intellectual equal of -the white race, as a race. - -This we take to be a plain statement of fact, and if we are not -amazed that our Northern antagonists do not accept it as such, we are -resentful that they will not even look at the proposition, or hear -of it, or inquire into it. Those of us who have ventured to discuss -the issues outside the South have discovered, whenever the point -arises, that no one is so intolerant of truth as academicians whose -profession it is to pursue it. The whole question of race has become -a closed question: the earth is a cube, and there’s an end to it; Two -and two are four, the sun rises in the east, and no race is inferior -to any other race. Even the possibility of a conflicting hypothesis -is beyond the realm of sober examination. John Hope Franklin, -chairman of the history department at Brooklyn College, sees Southern -attitudes on race as a “hoax.” Their wrongness is “indisputable.” To -Ashley Montagu, race is a myth. A UNESCO pamphlet makes the flat, -unqualified statement that “modern biological and psychological -studies of the differences between races do not support the idea -that one is superior to another as far as innate potentialities are -concerned.” And when one inquires, why, pray, has it taken so long -for the Negro’s innately equal potentialities to emerge, the answers -trail off into lamentations on the conditions under which the Negro -has lived. Thus, the doctrine of environment, like the principle of -charity, is trotted out to conceal a multitude of sins. The fault, if -there be any fault, is held to be not in men’s genes, but in their -substandard housing. - -All this is to anticipate some of the points this brief is intended -to develop, but it is perhaps as well to know where the argument is -going. The South does not wish to be cruel, or unkind, or intolerant, -or bigoted; but in this area it does not wish to be unrealistic -either. We do not agree that our “prejudice” in this regard is -prejudice at all, in the pejorative sense in which the word is widely -used. The man who wakes up ten times with a hangover, having had too -much brandy the night before, is not “prejudiced” against brandy -if on the eleventh occasion he passes the brandy by; he has merely -learned to respect its qualities. And what others see as the dark -night of our bigotry is regarded, in our own observation, as the -revealing light of experience. It guides our feet. As Patrick Henry -said, we know no other light to go by. - - -IV - -The consciousness of the Negro, I have said, is one common thread in -the fabric of the South. There are others, identified by countless -observers who have looked upon this tapestry, that merit some -discussion also. Let me expand for a few moments on three themes: -The Southerner as Conservative, the Southerner as Romantic, the -Southerner as Realist. - -Russell Kirk, in _The Conservative Mind_, examined the philosophy -that generally is identified as “Southern conservatism” and found it -rooted in four impulses. Apart from the Southerner’s sensitivity to -the Negro question, he said, there is (1) his half-indolent distaste -for alteration, (2) his determination to preserve an agricultural -society, and (3) his love for local rights. These are good starting -points. It was John Randolph who laid it down, as a first principle -of political activity, never needlessly to disturb a thing at rest. -The pace of life _is_ slower in the South, and the tendency cannot -be accounted for simply in terms of a climate that often makes it -“too hot to move.” We are by nature a contemplative people, and I am -inclined to believe this stems from the agrarian tradition. A farm -boy learns early that some things can’t be hurried--the birth of -calves, the tasseling of corn, the curing of tobacco. On the farm, -life is governed by patience, by the inexorable equinoctial rotation -of the seasons, by factors beyond man’s control. It is, we say, -“God’s will.” - -And until quite recently, as the census records show, the -agricultural society was our prevailing society. Moreover, the 1960 -census figures on urbanization, within the context of the South, can -be highly misleading. A great part of this statistically “urban” -population lives in towns so small that the towns are spiritually -and economically a part of the rural countryside around them. There -were in 1960 only seventy metropolitan areas of more than 50,000 -population in the thirteen States, and twenty of these were in -Texas. In Mississippi, Jackson has edged past 100,000, but no other -city in the State is even close to that mark. Outside of Fort Smith -and Little Rock, Arkansas is a State of small towns. This is even -truer of North Carolina; fewer than one-fourth of the State’s four -and a half million residents live in the six principal cities (the -largest is Charlotte, with a metropolitan population of 272,000). -The others are scattered through scores of towns and villages. -Georgia is statistically “urban” now, but urban attitudes are largely -concentrated in Atlanta, and perhaps four other cities. Beyond -Charleston, Columbia, and perhaps Greenville, South Carolina is -almost as countrified today as it was in the time of Calhoun. - -The slowness of life in the country, where diversions are few and -the reasons for haste almost nil, tends to breed men who are highly -resistant to change. They know, as well as they know anything, that -change and progress are not necessarily to be equated; and for all -the tub-thumping that goes on in local chambers of commerce, many -a Southerner is not so sure he is in favor of progress anyhow. The -Northern Neck of Virginia, for one example, has a positive antipathy -to altering anything. - -The conservatism that is identified with the South, as W. J. -Cash remarked in his great work, _The Mind of the South_, runs -continuously with the past. It embraces also a strong sense of -community, of _place_, of local institutions and families and -classes. Primogeniture vanished with the American Revolution, but its -vestigial spirit may be observed at every hand; whole generations -of Randolphs have been lawyers, and whole generations of Tuckers -have been doctors and ministers. The South is a land not only of -“Juniors,” but of “IIIs” and even “IVs.” - -Because of this intense spirit of local as well as State -identification, an almost universal dedication to “strong local -government” is apparent. There is more to this than local sentiment. -If there is one aspect of Southern conservatism more pronounced than -the others, it is the instinctive suspicion of all government that -forever stirs uneasily in the Southern mind. Cash has described as -“the ruling element” of Southern tradition, this “intense distrust -of, and, indeed, downright aversion to, any actual exercise of -authority beyond the barest minimum essential to the existence of the -social organism.” We do not _like_ authority, especially needless, -lint-picking, petty authority, and a broody pessimism constantly -evokes the apprehension that government, if given half a chance, -will put a fast one over on the people. In the eternal conflict of -man and the state, the South stands in spirit, at least, firmly -on man’s side. From the very beginning of the American Republic, -our ruling doctrines have been based upon strict limitation of the -powers of government. The people of Virginia came warily into the -Union, in 1788, on the explicit understanding that the political -powers they were lending the central government “may be resumed -by them whensoever the same shall be perverted to their injury or -oppression,” and the Virginians wanted it known that “every power not -granted [to the central government] under the Constitution remains -with them and at their will.” Ten years later, when this promise of -pessimism was abundantly fulfilled in the Sedition Act, Kentucky -and Virginia were beside themselves. What could be done to restrain -officials who usurped power? “Bind them down,” thundered Jefferson, -“with the chains of the Constitution!” - -Still another aspect of Southern conservatism, deeply rooted in -the agrarian tradition, is the respect for property that dwells -inherently in the Southern mind to this day. George Mason, composing -the Virginia Declaration of Rights, did not hesitate to use the word -itself; man’s inalienable rights, he declared, embraced not only -the enjoyment of life and liberty, but also the means of acquiring -and possessing _property_. Part of this feeling may stem from the -Englishman’s tradition of his home as his castle, and part from the -farmer’s conviction that, though the bottom fall out of the market on -corn or pigs or cotton or tobacco, in the end his land will sustain -him. - -Whatever the root sources, the tendency has carried over even to the -expanding cities of the urbanized South. It has not been a fear of -integrated housing (this specter is a late arrival on the scene) that -has made the South relatively so slow to embrace Federal grants for -slum clearance, public housing, and urban renewal. Much of the public -resistance, sometimes made manifest and sometimes merely sensed, is -a consequence of this inbred feeling for property; it is a feeling -that responsibility for housing rests with the individual first of -all, and that no man’s property should be taken under eminent domain -except for literal public use. When Southern cities experienced their -first wave of dime-store “sit-ins,” early in 1960, the startled -reaction sped at once to the rights of the store owner: This lunch -counter was his _property_. Did he not have a right to control its -use? - -Finally, I would suggest that the Southerner as Conservative is -affected, perhaps more strongly than he himself would acknowledge, -by a respect for divine power. Again, the agrarian inheritance plays -a part in this legacy. The miracle of the seed, the continuum of the -forest, the closeness of animal birth and life--these work a profound -influence on men whose existence is tied umbilically to nature. In -the loneliness of field or prairie, the smallness of man and the -largeness of God strike to the heart’s core. The blessing of the -harvest, the wrath of the storm, and the benediction of a slow and -mizzling rain on freshly seeded land speak to the Southerner of God’s -handiwork. - -Perhaps by reason of these influences, organized religion, -predominantly among low-church Protestant denominations, continues -to play a pervasive role in Southern life. To be sure, the parent -Protestantism gives off some notable sports--the Faith Healers, -snake-handlers, and the Holy Rollers--and the abiding fundamentalism -of the region continues to manifest itself in pockets of strict -Prohibition and in contemporary versions of the Tennessee Monkey -Trial. But religion crops up in other ways, in the grace before -meals expected at every public function, in the phenomenal sales -of religious books, and in the incredible proliferation of choirs, -sodalities, ladies’ auxiliaries, young peoples’ groups, vestries, -boards of deacons, church suppers, and building-committee meetings -that characterize life from Brownsville to Virginia’s Eastern Shore. -A Southerner who does not belong to _some_ church is not regarded as -suspect, exactly, but he is just a little odd. And if the low-tax -Southerner traditionally is penurious in rendering unto his Caesars -the things that are Caesar’s, he is often sacrificial in rendering -unto God the things that are God’s. - - * * * * * - -The deference that is paid to Holy Writ and to evidences of divine -intervention doubtless contributes to the character of the Southerner -as Romantic. Faith and superstition and myth are cousins, hardly even -once removed, and whatever else it may be, the South is first of all -a land of legends. This is a terrible annoyance to historians; they -look upon our pretty myths, and know they are not so, and expose -their fallacies in a thousand footnotes, but like the South, the -legends rise again. “Few groups in the New World have had their myths -subjected to such destructive analysis as those of the South have -undergone in recent years,” C. Vann Woodward once observed. - -Yet the myths persist. There is the Old South legend of the -white-columned plantation, the hoop-skirted belles, the hot-blooded -men. In the foreground, beneath the magnolia trees, the darkies are -plucking banjos; in the background, rows upon rows of cotton, and off -to one side, a steamboat coming around the bend. Master loves the -Negroes, and the Negroes love old Master. The words and music are by -Stephen Foster. This, we like to say, was how things _were_ in the -ante-bellum South. The exasperated scholar, emerging from his Will -Books, cries out his anguish in the quarterly reviews: The records -_prove_ it was not so; they prove that slave ownership was limited; -the records prove that Southern Negroes--as many as 100,000 or -200,000 of them--deserted to the Union cause in the War; the records -probably prove there weren’t but thirty-two banjos in all of Carolina. - -These labors of genealogy go utterly unrewarded. With what Cash has -described as the South’s “naive capacity for unreality,” our people -pat the historians on their fevered brows, thank them kindly just the -same, and return untroubled to an intuitive devotion to the things -that never were. - -“I am an aristocrat,” cried Randolph of Roanoke. And the Southerner -regards him with an affection not extended to Clay or Calhoun or -Jefferson. So, we imagine, were they all--_all_ aristocrats, men of -ease, and grace, and elegance, and high birth; men who lived by a -code of honor, and died beneath the dueling oaks; men who gambled -with skill, and loved with passion; men who fought with a royal -disdain for risk. Well, Cash and Woodward and a dozen others have -had a hand in exploding this Cavalier myth. Tediously, with infinite -pains, they have dredged up the pedestrian facts. The Southerner will -have none of them; he knows better than to let a few facts interfere -with a good story. His colonists all wear ruffled collars; his -ladies, blue-veined, are pale and pure as talisman roses. “_I am an -aristocrat: I love freedom; I hate equality!_” Who in the South could -disclaim the Randolph inheritance? - -It is not only the myths of the pre-Revolutionary South and the -ante-bellum South that have been so sharply assailed. The Southwest’s -legends of the cowboy have been worked over too. The frontiersmen -of Tennessee and Kentucky, on examination, prove to be something -less than godlike men. The Creole stories of New Orleans, the -richly embroidered legends of the War of ’61-’65, the tales of -Reconstruction hardships, even the twentieth-century chronicle of Jim -Crow, have been cracked by the academic refineries--but no catalyst -ever seems wholly effective. As soft as Spanish moss, and almost as -insubstantial, legends subtly dominate the Southern mind. - -And it is not a bad thing. Legend is born of truth, however remote -and obscure the fatherhood may be, and legend has a way of siring -truths stamped in ancestral molds. The hospitality of the plantation, -as a universal pastime, may not bear too strong a light; but -“Southern hospitality,” its descendant, is a working truth today. -Not all the colonists were Cavaliers, and not all the Cavaliers, we -may reasonably assume, were mannered men; but a Southern manner, -born of the Cavalier myth, persists in our own time. It is the -Virginian’s “Sir,” the Texan’s “Ma’am.” To the Southerner, in Burke’s -phrase, manners are always more important than law. Deference to -women, principles of personal honor, the payment of a gentleman’s -debts--these are operative aspects of the “Southern Way of Life.” -Objections of “unreality” are put to one side. - - * * * * * - -But, may it please the court, there is the Southerner as Realist too. -It is the weight that balances. Cash wrote of the tendency in New -England, in the Reconstruction period, for men to turn increasingly -to science and technology, and increasingly away from the customary -forms of religion. “But in the South,” he said, “the movement was -to the opposite quarter. For invariably when men anywhere have -come upon times of great stress, when they have labored under the -sense of suffering unbearable and unjust ill and there was doubt of -deliverance through their own unaided effort, they have clung more -closely to God and ardently reaffirmed their belief. Invariably they -have tended to repudiate innovation, to cast off accretion, to return -upon the more primitive faith of the past as representing a purer -dispensation and a safer fortress. And if I have represented our -Southerners as determined to have the mastery, yet it must be said -that terror was continually threatening to seize the ascendancy, that -there was in their thought a huge vein of gloomy foreboding, which -trembled constantly on the verge of despair.” - -The student of our affairs who does not understand this much about -the South does not understand the South at all. I do not know who -it was who made the observation first--Donald Davidson, or Richard -Weaver, or Louis Rubin, or Arthur Schlesinger, or Vann Woodward, or -some forgotten historian of eighty years ago; it does not really -matter; untutored, I wrote it myself in high school--that alone -among all the regions of the Union, the South has known defeat. To -know defeat is to know sin; it is the ultimate blasphemy against the -American theology. As a nation, we are geared to instant success: -Listerine will vanish bad breath, and Bufferin will cure a headache; -a touch of Wildroot will clear up one’s dandruff; any boy may aspire -to be President, or to make a million dollars, or to play center -field for the Yankees. Failure--permanent, total, unqualified -failure--is unknown. It is intolerable. It shatters the grand -American illusion. - -But the South has known failure. It has known what it is to do one’s -best, to fight to exhaustion, and to lose. This huge vein of gloomy -foreboding, this constant trembling on the verge of despair, was -not an isolated phenomenon of the Reconstruction period. In Cash’s -phrase, it is part of the collective experience of the Southern -people. We have known defeat. - -And not in war only. Long before the War, as the industrial North -leaped to surpass the agrarian South, the thin, serrated edge of -poverty began to cut across the South. The Tariff of Abominations -was a beginning of it, and Calhoun and the South cried out in -anger against its unfairness. The terrible institution of slavery -contributed to it, but slavery was a tiger by the tail, and men -could not cling to it successfully or safely let it go. There was -the War, and the westward expansion, and the lines of commerce that -flowed east and west but seldom north and south. The bitter years of -Reconstruction resulted in a lean and grinding poverty, a poorness -the more pitiful for its stoic acceptance by a proud people. And we -know that poorness yet: Look at the _Statistical Abstract_. - -Defeat. Poverty. And Woodward adds to these two grim horsemen still -a third: a sense of guilt. While the rest of the Republic has basked -complacently in its own virtue, the South’s preoccupation has been -with guilt, not with innocence, “with the reality of evil, not with -the dream of perfection.” To Woodward’s shrewd insight, I would add -a few reflections of my own. This preoccupation with guilt and this -reality of evil have not been burdens the South has felt it could -regard honestly as entirely its own responsibility. The “peculiar -institutions” of slavery and segregation have descended upon the -South like pregnancy upon a woman whose lover has ridden away. The -New England slavemasters had their fun, and made their dreadful -profits, and sailed off to Maine; and they left the South to raise -the alien child. Oh, it was a willing union. It was not rape, not -seduction. The Southerners who bought the frightened blacks lived for -a hundred years in agreeable sin with the European and New England -slavers who sold them. But when the assignation ended, the South -had all the problems, and the North had all the answers. Thus the -preoccupation with guilt is mixed with a resentment for hypocrisy; -and when the North speaks loftily to the South, and asserts that we -of the North are holier than thou, three hundred years of skepticism -seek an outlet: Pray, sirs, since when? - -This should be said, too, about Woodward’s “reality of evil.” Surely -there have been evils in the South’s policies of racial separation. -Poor as the South was, in the sixty years after Reconstruction -that preceded World War II, much more could have been done, and -should have been done, to encourage the Negro people closer to a -cultural and economic equality. I have said it countless times, and -say it willingly here: If the South had devoted one tenth of the -effort toward keeping schools equal that it devoted to keeping them -separate, _Brown_ v. _Board of Education_ would not have created so -dramatic a crisis. Yes, there have been evils, and very real and -poignant and tragic evils, in the South’s treatment of its Negro -people. - -But I would raise the question if the “evils” have been all on the -side of the white South. _All_ of them? The reality that the South -has had to cope with most constantly, beyond the realities of defeat -and poverty, is the reality of the Southern Negro. Other races of -men, caught at the bottom of the ladder, have clambered up. The -identical decades that saw Negroes set free in the South saw the -Irish set down in New England. “No Irish need apply.” The signs hung -outside New England mills as uncompromisingly as the “white only” -signs outside an Alabama men’s room. Who would have imagined in, say, -1880, that a Boston Irish Catholic would be President? But the Irish -fought their own way up, on merit and ambition and hard work. They -_made_ a place at the table. They won acceptance, and they paid their -own way. - -No such reality has been visible in the South. Instead of ambition -(I speak in general terms), we have witnessed indolence; instead of -skill, ineptitude; instead of talent, an inability to learn. It is -all very well for social theorists to say of Southern Negroes that -they are _capable_ of this, and their _potential_ is for that, and -if it were not for segregation and second-class citizenship and -denial of opportunity, they would have achieved thus and so; but -the Southerner, to paraphrase Burke, is not so much interested in -determining a point of metaphysics--he is interested in maintaining -tranquility. The Southerner may dwell more than others upon the past -and brood more intently on the distant future, but in his daily life -he has to be concerned with the here and now--in brief, he has to be -concerned with reality. - -The first reality he faces squarely is the one reality most often -shunned: the _inequality_ of man. The typical Southerner, out of the -observation and experience of his lifetime, would accept Burke’s -thesis that universal equality may exist, but only as the equality -of Christianity--moral equality, or, more precisely, equality in the -ultimate judgment of God. He knows that “no other equality exists, -or may be imagined to exist.” The South holds small enthusiasm for -egalitarian doctrines based upon the infinite perfectibility of man. -With John Adams, who would have made a splendid Southerner, we know -that men are foolish; that men are not benevolent; and we regard -this as a normal condition of existence. Theoretically, to be sure, -men are born to equal rights; but empirically, for good or ill, -these rights are incapable of equal exercise. All men are not born -with equal powers and faculties, said Adams, “to equal influence in -society, to equal property and advantages through life.” These are -realities, and the Southerner as Realist accepts them. - - * * * * * - -It is necessary, even in the most affectionate examination of -the South and its case before the bar, to insert a number of -qualifications and to take account of some dismaying contradictions. -The South, I have said, is a distinct political, cultural, and social -entity, knit together by hundreds of years of shared experiences. -But it was a lively and a valid question, in the postwar decade that -preceded the _Brown_ decision, whether this entity would survive. -On every hand the “New South” was heralded; the rural tradition was -dying, and bulldozers were ripping up the groves of the Nashville -agrarians. The provincialisms that had distinguished the South, -sometimes mocked, sometimes admired, seemed to be on the way out: -Southern cooking, the Southern accent, the South’s pride in being -Southern. Dixie, it was said, was rejoining the Union; soon it would -rejoin the twentieth century. - -The future of “Southern nationalism” still seems to me a valid -question. Does it have a future? In the years that followed -immediately upon the _Brown_ decision, make no mistake, the essential -unity of the South was abruptly revived. Mr. Chief Justice Warren’s -gavel echoed the guns of Sumter, and the “Southern Manifesto” in -Congress rang with the sound of bugles. Every latent instinct in -the mind of the traditional South rose to the fore: States’ rights, -strict construction, resentment of central authority, deference -to the past. The Southerner as Conservative found his principles -outraged; the Southerner as Romantic saw his dream castles besieged -by barbarians; and the Southerner as Realist, with a sense of -dreadful foreboding, turned to the coming storm. - -The _Brown_ decision operated with galvanic force upon the South; -but as this is written, eight years after _Brown_, it is apparent -that the electric shock has lost at least some of its impact. The -South, in many respects, is still one; but the prodigious energies -that were set in motion after World War II are beginning to reassert -themselves widely. If one reads the recent Messages and Inaugural -Addresses of Southern Governors, he will find segregation barely -mentioned. Everywhere, the emphasis is on industrial promotion, -tourist promotion, expansion of higher education. The problems that -increasingly absorb Southern legislatures are problems common to such -bodies across the Republic--taxation, highways, mental health, the -control of air and water pollution. - -In brief, I doubt that “the Negro question,” by which is meant the -fear of integration and of a revolutionary Negro ascendancy, will -provide a sufficient force, in itself, to keep the South welded -together. The fears of 1954 are subsiding, as it becomes apparent -that there will be no significant integration (not in the definitive -sense in which I use the word, as a condition quite distinct from -“desegregation”); and we observe that the revolution so many -Northerners jubilantly anticipated in _Brown_ is not to be a two-day -_coup d’état_, but a thirty-year Peloponnesian War. Beyond the -borders of Georgia, Alabama, and Mississippi, interest wanes. In -Virginia, the assignment of a Negro child to a formerly white school -now rates a two-inch item on _The News Leader’s_ page 48. - -What of the other common themes that tie the South together and make -the region distinct? What of Southern conservatism? What of the -Southern manner? These traits will endure, I believe, though a wry -acknowledgment may be made of persuasive evidence to the contrary. -It is perfectly true that the Conservative’s traditional animosity -to centralization has a way of disappearing in the South when bills -are called up in the Congress to support cotton, and peanuts, and -tobacco. The Conservative opposes socialism and all its works; it -is his favorite devil; but the steam plants of the TVA seem to be -marvelously exempt from his anathema. It was a Georgian whose name -was longest and most lustrously identified with foreign aid, and an -Alabaman whose plan of Federal subsidies for hospitals bears his -name, and an Oklahoman who has led the Liberal forces in behalf of a -Federal program of medical care. The case for “Southern conservatism” -totters before the voting records of Kefauver, Gore, Fulbright, -Sparkman. - -The defense would respond to this indictment by saying that all -things are relative, and in an increasingly Liberal society, it -is only the political center that has moved. The old Conservative -instincts remain, and if they have been much corrupted, they still -manifest themselves in a hundred ways not necessarily susceptible to -roll-call vote. A wise and enlightened conservatism does not resist -all change; it resists what it views as impulsive change, or change -simply for the sake of change, and this tendency, I believe, remains -more apparent in the South than in other regions. We still resist -abrupt innovation, in art, music, literature, architecture, religion, -public morals. Other regions, in our view, should be the first to -lay the old aside. Instead of casting away all our old prejudices, -as Burke once remarked cheerfully of English Conservatives, “we -cherish them to a very considerable degree, and, to take more shame -to ourselves, we cherish them because they are prejudices; and the -longer they have lasted, and the more generally they have prevailed -the more we cherish them.” This process of cultural husbandry, this -laying by, has been too long ingrained in the South. I cannot -imagine its abandonment any time soon. - -The South’s identification with “conservatism” will survive, among -other reasons, because it fits so perfectly into the real or imagined -Southern manner. These days, liberalism is identified with the -masses, and not merely identified with them but equated with them. -The race issue to one side, this equation simply is not a process -that comes easily to the Southern temperament. Implicit in the -conservative faith is a high respect for individual variations, -for class, and order, and rank; and all these are implicit in the -Cavalier ideal as well. Aristocracy is wasted in a shower room; and -to the extent that public institutions are reduced to the level -of a public bath, the Southerner is bound to object. The graces, -the little elegancies, the privileges of birth and office and -position--these too are long ingrained; they persevere. - -To be sure, a good deal of cynical evidence may be amassed to -suggest that this Southern manner, this Southern romanticism, -is as unreal as the myths on which it is based. When a gang of -foul-mouthed Mississippi white men lynch a fifteen-year-old colored -boy, the Southern manner seems a long way away. And when a rabble -of black-jacketed young punks assemble to jeer at law-abiding Negro -students, notions of _noblesse oblige_ may seem just that: notions. - -But if Southern conservatism may yield now and then to the temptation -of the pork barrel, and Southern romanticism be attenuated by -the impatience of an impatient age, the last of my four threads -may prove stronger than ever: Southern realism, and with it, the -tradition of Southern defeat. For decades to come, despite the -phenomenal population shifts (and in many instances because of these -population shifts), the South will have to live realistically with -the interracial realities it alone, among all the regions of the -country, has known well. “It is a condition which confronts us,” -said Cleveland of the tariff, “and not a theory.” Just so with race -relations in the South. The gentlest concepts of brotherhood, the -broadest reaches of the law, the finest theories of integration, -go through a sea change in crossing the Potomac. These comfortable -Liberal attitudes emerge from the gauzy mists of illusion and -encounter the blazing sun of fact: _These_ rural schools, _these_ -country people, _these_ children, white and black, in _these_ -particular towns and villages. The Negro is not moving in any -substantial numbers to the remote rural counties of the North; he -is moving predominantly to the cities, where everything works in -his favor during a period of transition: job opportunities, the -melting-pot tradition, the impersonal anonymity that protects him -in a larval time. Yet millions of Negroes remain back home in the -South, salt-and-peppered across the rural countryside, and they and -their problems and aspirations are daily, personal realities to the -Southerner. He knows he must cope with them somehow. - -And the Southerner knows more than this. He knows, in the marrow of -his bones, that new defeats are entirely probable. He takes this -much profit from the lessons of the past, that he learns something -for the future. Desegregation, as a legal principle, is accepted -inwardly by many of the Southerners who cry out most vehemently -against it. Something of the spirit has been surrendered. One more -defeat has been experienced, and we know it. In the first few years -after _Brown_, we perceived in this judicial Gettysburg nothing -finally decisive. The talk then was of sending Governors to jail, or -of challenging the Justice Department to arrest whole legislatures. -Let them call out the troops! Well, Mr. Eisenhower did call out the -troops; and our Governors had second thoughts about going to jail, -and not even the Louisiana legislature could devise a way to get -itself arrested. Little by little, the hopeless conviction has begun -to seep in that it has happened again, that the courts really _mean_ -this, that so far as laws and litigation are concerned, nothing -remains but the long road to Appomattox. Proud Virginia gazed upon -the voluntary desegregation of her schools with bitter distaste, but -in the end we were like Byron’s heroine who “vowing she would ne’er -consent, consented.” Defeat. - -And yet; and yet. The fabric of the South is snagged with a beggar’s -lice of contradictions. The jesting exhortation that the South -will rise again has a hard kernel of truth at the bottom. It is -precisely because the South has experienced defeat, again and -again, in Nullification, in the Missouri compromise, in the War, -in Reconstruction, in the postwar generations, time and again, -in contradiction to the success of our neighboring regions, that -defeat has become an old friend. We meet it, and survive; we rise -again. And paradoxically, the prospect of defeat in lunch counters, -waiting rooms, public schools, places of assembly, is no harbinger of -ultimate despair; the prospect is an old friend, the face of defeat, -and in the South it is a symbol not of disintegration but of unity. -Misery loves company. It does, indeed; oh, it does indeed! And we are -our own best company. - -I speak with a mild cynicism, and do not mean to: It floats to the -surface. The mystical entity that is the South is held together, in -a lovely, helpless, hapless bond, by its consciousness of the Negro, -by its abiding conservatism, by its dedication to romanticism, and -by its inexorable sense of realities, and whenever one of these -threads wears thin, another is redoubled and twice twined together to -knit the fabric whole. The defeated South is never wholly defeated; -the romantic South cannot be wholly disillusioned; the conservative -South can flirt with liberalism and remain as chastely conservative -as before; and to the twin inevitabilities of death and taxes we -philosophically add a third: the Negro, _in saecula saeculorum_, -world without end. Amen. - - -V - -Let me move on, may it please the court, with fewer digressions and -random interpolations, to the South’s case against “integration.” -The quotation marks are intended to suggest that the noun has a -distinctive meaning. This is as good a place as any for a definition -of terms. - -Increasingly, in the Southern lexicon, words that are used -interchangeably elsewhere in the country have come to take on a -special and well-understood meaning. By “segregation,” for example, -we now mean the body of practices enforced by State or local law. -Prior to _Brown_, our schools were legally segregated. As this is -written (though probably not for long), places of assembly, athletic -contests, certain public records, also are segregated by law in -several States. As these laws and institutions one by one are bowled -over by court decree, a process of _desegregation_ sets in. It is an -abominable word, by any philological standpoint, as madly illogical -as “irregardless” or “inflammable,” but a new spirit of lexicography -is abroad in the land: Whatever is, is right. Our schools, save -in Mississippi, Alabama, and South Carolina, are entering upon -desegregation. - -By racial _separation_, we mean something much less precise. In -almost every aspect of Southern life, the races are separate, though -not necessarily (or even very often) are they segregated. Day in -and day out, white and Negro inevitably are thrown closely together -in the South--shopping in stores, working in factories, riding in -elevators and buses, standing in queues at banks or liquor stores -or post offices--but this is the normal condition of existence. I -have termed it an intimate remoteness. It is a condition that goes -beyond the ordinary impersonal encapsulation of strangers; it is -a subconscious recognition that ours are separate races, separate -worlds. This does not imply that there is no communication. On the -contrary, the Southern white and the Southern Negro are gregarious -animals; thrown temporarily together, they will make agreeable -conversation: “Think this rain will ever stop?” “It suttinly is -po’in, it is that.” This is the relationship that conditions all -human intercourse in the South. A murder has been committed; the -police reporter’s first question, before he thinks of who or where or -why or when, is simply “white or colored?” A candidate qualifies for -public office: Is he white or colored? News values start from this -point. (Even as I write this paragraph, the telephone rings, and it -is an informant at the State penitentiary calling to tell me that -clemency has been granted a prisoner in death row. I am not familiar -with the case. “White boy or colored boy?” I ask. Doubtless it makes -no difference; they are equally fallen sparrows, but the question is -automatic, instinctive, inescapable. It is a consequence of racial -separation, and this is a part of the world we live in.) - -Finally, by way of definition, _integration_ has come to mean a -willing suspension, or abolition, of the state of mind I attempt to -convey by _separation_. So defined, integration is almost nonexistent -in the South. The term embraces the complete and unrestrained -intermingling of races, on terms of social equality, without -constraint of any sort; it is color-blindness, voluntarily accepted; -it is more than mere joint membership on civic committees or school -boards. And it is not something that can be achieved by writ of -mandamus. A court can impose a legal condition of desegregation, and -thus put an end to segregation; but a court cannot enjoin separation -and thus achieve integration. The arm of the law, long as it is, -cannot reach into certain areas of the human spirit. - -It would be pointless, at this late stage, to prepare even a -hypothetical brief directed wholly against “desegregation.” The -desegregation of public institutions is a _fait accompli_. True, the -process is far from complete; in the Deep South, in this late spring -of 1962, the process has not even begun--and I would not hazard -a guess when it will begin, or be complete. No time soon. But my -thesis here is primarily the South’s abhorrence of integration, and -especially the South’s continuing stubborn resistance to a widespread -desegregation of the public schools that fearfully would result in -integration of the races. Why is the South resisting race-mixture in -its public schools? - -I am going to suggest three primary reasons. Other writers about the -South might put them down as five or ten or fifteen reasons, but in -the end perhaps we would cover the same points. Mine are, first, the -arguments of anthropology; second, the arguments of practicality; and -third, the arguments for gradualism. - - -VI - -On the first point: The South earnestly submits that over a period -of thousands of years, the Negro race, as a race, has failed to -contribute significantly to the higher and nobler achievements of -civilization as the West defines that term. This may be a consequence -of innate psychic factors. Again, it may not be, but because -contemporary evidence suggests little racial improvement, the South -prefers to cling to the characteristics of the white race, as best it -can, and to protect those characteristics, as best it can, from what -is sincerely regarded as the potentially degrading influence of Negro -characteristics. - -Now, that is a “racist” thesis, and if one would listen to no more -than the horrified gasps of the Liberal left, the very statement -is a dreadful example of racism at its worst. Hitlerism! Fascism! -Kluxism! White supremacy! To the doctrinaire theologians of a Liberal -socio-anthropology, the thesis is blasphemy, and it is mortal sin -even to consider it. A Group for the Advancement of Psychiatry, in -May 1957, denounced such heresy in unequivocal terms: “The _fact_ -is, _of course_, that the Negro possesses the same capacities and -potentialities as does the white.” - -But if this is a _fact_, how did it get to be a fact? How “of -course”? Is the question of innate aptitudes and characteristics no -more arguable than the sum of two plus two? Is the flat statement -that “the Negro possesses the same capacities and potentialities as -the white” to be regarded on a level with “Washington was the first -President,” or “the square of the hypotenuse of a right triangle -is equal to the sum of the square of its other two sides”? If this -“fact” has in truth been so positively established, discussion of the -subject is wholly pointless; nothing remains to be said, and those -readers whose minds are closed to reconsideration will flee from -these pages and soothe their wounded sensibilities with the balm of -Ashley Montagu’s hairless prose. - -But those who are agreeable to pursuing truth, _wherever the -quest may lead them_, will stick around; they will keep their -minds open; they will acknowledge at least an outside possibility -that the disciples of Boas and Klineberg could be in error; they -will formulate questions, and they will insist upon honest and -straightforward answers to them. And if intellectually satisfying -answers to their questions cannot be adduced, they will honestly -acknowledge at the end: _The question is still open._ - -Now, that is all the defense can ask. Few Southerners have made -any serious attempt to read up on anthropology or to acquaint -themselves with the results of intelligence tests. Their judgments -and attitudes--or if you please, their prejudices--are based largely -upon personal observation, instinct, upbringing, the cumulative -experiences of a lifetime, stored up day by day and hour by hour. -An advocate for the South does not wish to be dogmatic. He does not -insist that the South has all the right answers. He does not say, -“the _fact_ is, _of course_.” But the South does suggest that it -raises some of the right questions. - -Even to raise the right questions has become an almost impossible -undertaking in today’s emotionally charged atmosphere. For the -past twenty years at least (I write in 1962), a systematic and -well-financed campaign has been under way to obliterate the entire -concept of race. This calculated perversion of honest scholarship has -drawn a rebuke from Dr. Carleton S. Coon, one of the world’s foremost -anthropologists, who himself believes that classification by race “is -a nuisance.” In _The Story of Man_, Coon departs from his masterly -narrative long enough to register a serious protest against the -activities “of the academic debunkers and soft-pedalers who operate -inside anthropology itself.” - -“Basing their ideas on the concept of the brotherhood of man,” -Coon comments sharply, “certain writers, who are mostly social -anthropologists, consider it immoral to study race, and produce book -after book deploring it as a ‘myth.’ Their argument is that because -the study of race once gave ammunition to racial fascists, who -misused it, we should pretend that races do not exist. Their prudery -about race is equaled only by their horror of Victorian prudery about -sex. These writers are not physical anthropologists, but the public -does not know the difference.” - -Typical of the doctrinaire Liberals who shrink from the very notion -of race are the scientists who make up the Group for the Advancement -of Psychiatry. In their disdainful view, race is no more than a -“myth.” In particular, the Group denounces the “myths which have -grown up about the Negro.” These “myths,” it is said, serve merely -to rationalize and to justify the white man’s disparaging attitudes, -because he cannot clearly recognize or understand the real source of -his prejudice. We should realize, says the Group, that such “myth -formation” psychologically seeks to protect individual and group -security; and if we realize that, we can better understand why the -“myths of prejudice” are so resistive to logic: The powerful need -for safety, which “the myth” is created to insure, explains why it -is clung to despite facts and logic to the contrary. Moreover, the -damaging consequences of “racial myths” are misconstrued as evidence -to support them. - -Ashley Montagu has suggested, in _Human Heredity_, that the very -word _race_ be struck from the English language. There is, he says, -“sound sense in the argument that the long-standing abuse of the -meaning of a word constitutes the best reason for its total exclusion -from common usage.” Unsound words make for unsound ideas, and the -unsound ideas tend to result in unsound action: “The word ‘race’ -is a horrid example.” To Dr. Montagu, race is a notion, a myth, a -fallacy, an error. In the sense that the term suggests distinguishing -characteristics on the part of a particular people, “the word is -beyond rescue and it had better be dropped altogether.” He suggests -that the term “ethnic group” be employed instead, and the most he -will concede is that “slight differences may exist between some -ethnic groups in the frequencies of certain genes underlying mental -capacity.” This is possible, says Dr. Montagu, “but in spite of all -attempts, no one has, in fact, ever demonstrated that they do.” - -Otto Klineberg, who cannot bring himself to write the words _race_ -or _racial_ without putting them in quotation marks, says the same -thing: “In all probability, inherent intellectual differences between -Negroes and whites do not exist.” Other writers--Kenneth Clark -and Ruth Benedict, for example--are impatient with such academic -impedimenta as “probabilities.” More in anger than in sorrow, they -denounce the bigoted Southerner, who dares to suggest that in terms -of his capacity to adjust fully to Western values, the Negro may be -innately inferior. The very idea! And any recourse by the Southerner -to history, as Miss Benedict puts it, is mere “special pleading.” All -good historians know of the greatness of Negro achievements. To doubt -this truth is to substitute for historical processes “an unashamed -racial megalomania.” This is a “travesty of fact.” - -In 1960, a group of distinguished anthropologists, psychologists, and -social scientists, rebelling against the obstinate attitudes of the -Benedict-Montagu school, launched a small publication in Edinburgh, -_The Mankind Quarterly_. They ventured to suggest that some of these -questions of “race” are not altogether closed; they commented that -it was a pity to see responsible scientists so influenced by emotion -and political bias that they had closed their minds to objective -inquiry; and the editors proposed to publish occasional monographs -exploring aspects of these issues that were banned from exploration -elsewhere. _Mankind Quarterly_ scarcely had raised its mild voice -before shrill cries from the Liberal left united in a ritual chorus -of denunciation. Late in 1961, the chief editor, Dr. R. Gayre of -Gayre, replied to his assailants in an editorial that sums up so much -of the Southern view on these matters that I should like to quote -from it at some length. He began by expressing regret that persons -who do not slavishly subscribe to egalitarian dogmas should be -denounced automatically as “racialists” and their teachings condemned -as “racism.” He continued: - - The fear of being so abused has for the last one or two decades - been sufficient to silence many, if not most, scholars and prevent - them from writing what they believed and thought to be the facts in - connection with anthropological subjects. They have, in the main, - confined themselves to negative action, such as protesting when the - notorious UNESCO pamphlet on race was produced, and being happy - to gain, as a result, some modification of the more extreme and - nonsensical assertions of the a-racist egalitarians. - - That there has been such a clearly marked reactionary influence, - if not domination, over our studies, is so patently obvious that - it hardly needs to be stressed. Even those who have not subscribed - to any form of political doctrine have felt it safer to make - interpretations of the facts of race and heredity in such terms - that they can bear a clearly egalitarian interpretation.... The - anxiety which is shown to suppress publications and expositions - which do not support egalitarianism is entirely consistent with - this political direction of, and domination over, science.... - - [W]e wish to state categorically what are the views of the - editors on the matter of racial equality. While rejecting racial - egalitarianism as having no warranty in honest scientific - expositions and investigations, we do not, on the other hand, - subscribe to doctrines of racial _superiority_ or _inferiority_. - We believe that just as all individuals within a particular stock - are different, so is one racial group in relation to another. - In respect of some characters, various stocks will be superior - to others; and in other cases inferior; but in many cases no - perceptible differences may be apparent. While environment, both - physical and social, may influence these characters, we believe - that heredity is by far the most important single factor, and - the current fashion to eschew the significance of heredity is - a definite disservice to the understanding of what makes for - differences in the various characters which distinguish one group - from another. - - Furthermore, we do not presume to judge what is desirably superior - or not. We think that within the ambit of the type of civilizations - erected by the White-Brown stocks or the Yellow races, the - Black, which has shown no natural predilection to that form of - organization, will be at a disadvantage in any competition--and - is _in that sense_ inferior. After all, a _priori_ considerations - alone would lead to this conclusion, and if modern science thinks - this is not the case, it has yet to show why and how the Melanoids - have remained technologically backward compared to both the - Mongoloids and the Caucasoids. For the Egyptian civilization, - which was basically Caucasoid (Mediterranean, Atlantic, Nordic, - and Armenoid strains being the basis of that nationality), abutted - on the Negroid world of Africa, and its ideas were there to be - accepted and copied, so that urban technological civilizations - could have been erected in Africa, if that way of life had appealed - to the inherent Negroid genius and temperament. It is only within - this last millennium that certain ideas generated in Egypt four - millennia ago began to reach West Africa--long after the Nile - Valley civilization had decayed and disappeared. - -H. L. Mencken once remarked that the most costly of all follies, -which he viewed as the chief occupation of mankind, is to believe -passionately in the palpably not true. The aphorism applies with -special force to the Negrophile social anthropologists who are so -passionately determined to propound that which is palpably not true, -or at least palpably not demonstrable, that in their zeal of advocacy -they lose all sense of proportion. Thus, in their raptures, the most -primitive mud-hut cultures of the Congo must be praised for their -“sophistication” and “complexity.” Crude works of art tend to be -equated with the sculpture of Periclean Athens. In the rhythmic thump -of an African tom-tom, they find black Beethovens at work. Miss -Benedict, in _Race: Science and Politics_, is fairly transported. -Her technicolor illusions of African history produce “great kingdoms -of wealth and splendor ... great political leaders ... men of wealth -... the spread of higher culture.” In seventeenth-century Nigeria, -she sees “prized cultural achievements,” and of these African tribes -she girlishly cries that “their elaborate and ceremonious political -organization, the pomp of their courts, the activity of their -far-flung economic life, with its great market centers and tribute -collected over great areas, their legal systems with formal trial of -the accused, with witnesses and with prosecutors--all these excite -the admiration of any student.” - -Well, one is reminded of Mark Twain’s comment that there is something -fascinating about science: “One gets such wholesale returns of -conjecture out of such a trifling investment of fact.” Let it be -granted that there is much of archeological and anthropological -interest to be found in the obscure and sketchy “histories” of -various African kingdoms and empires. One might wish, abstractly, -to know more of the Ghana Empire, the Almoravid Empire, the Mali -Empire, the Songhai Empire; the teachers and the curriculum and the -libraries of the Universities of Timbuktu and Sakoré might usefully -be contrasted with those of the Universities of Paris and Bologna; we -should like standard reference works that offered full and scholarly -expositions of the kingdom Miss Benedict terms the “culmination” of -African civilization, the “great empire of Bornu.” It is an empire -not even mentioned by Herskovits in _The Myth of the Negro Past_ and -barely touched upon by J. D. DeGraft Johnson and W. E. B. DuBois in -their works on African civilization. (DuBois does say that Bornu, a -Northern Nigerian kingdom, had in the tenth century a civilization -that “would appear to compare favorably with that of European -monarchs of that day.” It is an assessment that leaves very little -to the Carolingians, and it is the sort of tossed-off grandiloquence -of the Negrophile propagandist that leaves the ordinary student more -mystified than informed.) - -In terms of enduring values--the kind of values respected wherever -scholars gather, in the East no less than in the West--in terms of -values that last, and mean something, and excite universal admiration -and respect, what has man gained from the history of the Negro race? -The answer, alas, “virtually nothing.” From the dawn of civilization -to the middle of the twentieth century, the Negro race, as a race, -has contributed no more than a few grains of sand to the enduring -monuments of mankind. - -One finds no pleasure in rendering such a judgment; one finds no -more than the cold comfort of truth, and even that chilly companion -is made the less attractive by the disdain in which this unappealing -truth is held. Yet the serious students of the South’s position, like -the serious pathologist examining an especially distasteful object, -ought not to be deterred. If the South is wrong in this appraisal -of the contributions of the Negro race (or “culture,” or “ethnic -group”), then evidence of this wrongness should be readily attainable -in standard works of reference; such evidence should be convincingly -documented, objective in its nature, susceptible of proof by accepted -tests of scholarship. - -Well, then, where is this contrary evidence? What library houses the -works of a Nubian Thucydides? Who was the Senegalese Cicero? One -plows in vain through the works of a score of apologists. In the -volumes of the most sympathetic Negrophile writers, one finds little -but conjecture, surmise, vague assertions that thus and so “must -have been true.” What are the contributions of the Negro culture -to enduring art, or music, or literature, or architecture? To law, -jurisprudence, government? To science, invention, mathematics, -philosophy? Here was a race, if the horrid word may be used (or a -culture or subculture or ethnic group), that lived for thousands of -years in effective possession of one of the richest continents on -earth. Here were a people who lived by the sea, and never conceived -the sail; who dwelled in the midst of fantastic mineral deposits, -and contrived no more than the crudest smelting of iron and copper. -The Negro developed no written language, not even the poorest -hieroglyphics; no poetry; no numerals; not even a calendar that has -survived. Even so skilled a defender as Toynbee has to conclude, -after a desperate flurry of coughs and sighs, that the Black Race is -the only one of the primary races “which has not made a creative -contribution to any one of our twenty-one civilizations.” Breasted, -who wrote in a more objective time, before fashions of social -ideology tended to warp critical judgment, says bluntly that “the -Negro peoples of Africa were without any influence on the development -of early civilization.” - -Franz Boas, the father of “modern” social anthropology, posed the -South’s question in this fashion in _The Mind of Primitive Man_: -“Have not most races had the same chances for development? Why, then, -did the white race alone develop a civilization which is sweeping the -whole world, and compared with which all other civilizations appear -as feeble beginnings cut short in early childhood, or arrested and -petrified at an early stage of development? Is it not, to say the -least, probable that the race which attained the highest stage of -civilization was the most gifted one, and that those races which have -remained at the bottom of the scale were not capable of rising to -higher levels?” - -Boas’ answer to his own rhetorical question, needless to say, is -that most races have not had the same chances for development, that -“the claim that achievement and aptitude go hand in hand is not -convincing,” and that “the earlier rise of civilization in the old -world ... is satisfactorily explained as due to chance.” He finds -nothing to persuade him that “one race is more highly gifted than -another,” and besides, he insists, Western critics ought not to judge -other races by their own standards. For example, an “impression” -exists that primitive men, and the less educated of our own race, -have in common a lack of control of emotions; it is thought that they -give way more readily to an impulse than civilized man and the highly -educated. This impression, says Boas, is entirely unjustified. Too -often the traveler or student measures fickleness by the importance -he himself attributes to the actions or purposes in which primitive -men do not persevere, and he weighs the impulse for outbursts of -passion by his own standard. The white traveler, to whom time is -valuable, is impatient and irritated at Negro porters, to whom time -means nothing. The proper way to appraise the Negro, Boas tells -us, is to consider his behavior in undertakings which he considers -important from his own standpoint. So considered, the differences in -attitude of civilized man and of primitive man tend to disappear. - -This line of defense has a certain plausibility and merit; divorced -from reality, it provides a fine topic for a sophomore’s term paper. -But the American South is an inheritor of Western civilization; the -South’s values are the values of the West, and it understandably must -be concerned with the capacity of the Negro people for contributing -to these values. The Ubangi’s mud huts may be the most artistic -mud huts ever set out in the sun to bake; by tribal esthetics of -the African bush, the Ashanti may be vastly more cultured than the -Yorubas, and the Balubi superior to the Mogwandi. Or vice versa. -These critical judgments are interesting. They are irrelevant, too. - -The question that never seems to be convincingly answered is _why_ -the Negro race, in Toynbee’s phrase, is the only race that has failed -to make a creative contribution to civilization. What can account -for the singular failure of the Negro people, alone among the major -divisions of man, to enter the mainstream of political, cultural, and -economic history? - -The first rationalization that is given is that the physical -conditions of sub-Saharan Africa imposed such fearful disadvantages -that the development of a “civilization” was patently impossible. -The argument simply will not hold up. As many geographers and -anthropologists have observed (in a day before such observations were -reviewed as blasphemy), parts of Africa were perhaps “uninhabitable,” -but other parts were not. In any event, the jungles of the Congo -imposed no obstacles to Negroid peoples greater than those faced by -the Mayans in the jungles of Chiapas. - -And consider the Mayans: They carved out of the rain forests of -Yucatán--out of an area Van Hagen has termed “the least likely place -one would choose for developing a culture”--a civilization that -can be identified, and studied, and photographed to this day. They -raised great temple cities: Tikal, Uaxactun, Calakmul. They built -roads and reservoirs. They developed complex ideographic writing, a -twenty-day lunar calendar, a code of laws for crime and punishment, -a flourishing industry in dyeing and weaving. To compare the crude -phallic fetishism of Negroid tribes with the highly developed art of -the Mayan and the Incan civilizations is to engage in a travesty upon -critical judgment. - -It is complained of the early Negroes that they were “isolated,” that -no maritime access was possible to the African interior, hence that -they had no opportunity for contact with the cultures of Europe and -the Mediterranean. This is a specious argument, too. Every standard -history of Africa makes plain, implicitly or explicitly, that early -Negroes did indeed have contact with the outer world. Phoenicians, -Arabs, Libyans, Hamites all found their way across Africa. Romans -came, and Persians, Chinese, Turks, Berbers, Indians, Portuguese. -Nothing aroused the Negro from his primitive sleep. He did not adapt. -He did not copy. He did not profit. - -In 1525, when Pizarro invaded Peru, he found a magnificent Incan -civilization flourishing in the almost impenetrable fastness of the -Andes. Here, indeed, was isolation from the currents of European -thought! No maritime access here! Yet the Incas had built temples and -labyrinths and massive palaces of stone. The palace at Cuzco offered -fountains, heated pools, intricate goldwork, and polished stones. -There were public granaries, a three-hundred-mile road, a decimal -system, an advanced astronomy. European explorers who sought trade in -Africa found nothing there to compare with this. As Nathaniel Weyl -has written, the decisive fact is that centuries of intermittent -contact with the growing culture and technology of the West “did not -serve to stir the Negroes from their millennial torpor, to quicken -their minds and prod their curiosity, to induce them at least to -borrow if not to invent.” - -Franz Boas has sought earnestly to explain all this away. So has -Basil Davidson in _Lost Cities of Africa_. So has W. E. B. DuBois -in _The World and Africa_. So has Johnson in _African Glory_. But -when it comes down to evidence acceptable to rational appraisal, -their romantic conjectures fall pitifully short of the minimum -requirements of objective scholarship. It is possible to accept -Boas’ judgment that some African wood carvers and potters have -produced work “original in form, and executed with great care.” -Coon’s slightly more enthusiastic appraisal is that Africa’s Negro -tribes “developed social systems of considerable complexity and a -high art, the quality of which the white world is just beginning -to appreciate.” There is merit in a thoughtful appraisal by the -Oxford anthropologist, E. E. Evans-Pritchard, of the complex system -of witchcraft, oracles, and magic that he found among the Azande -tribe of Central Africa. _Granted certain postulates_, he says, -inferences and actions based upon a system of witchcraft are sound. -But is Western civilization really prepared to “grant the certain -postulates” of witchcraft in order to find a rationale for praising -African culture? No. Let it be conceded that certain African arts and -crafts reached a tolerably interesting stage of development. Modern -dance and contemporary jazz doubtless owe much to the instinctive -rhythms of ancient tribal rites. But south of the Sahara there was -no literate civilization, no intellects at work to comprehend and -solve the abstract problems; and Western Europe was not built by -basket-weaving. - -Let us move along. The story is told of a conversation between -Boswell and Dr. Johnson, in which Boswell mentioned Bishop Berkeley’s -theory of the nonexistence of matter. Boswell said he was satisfied -the theory was not true, but he confessed he was unable to refute it. -Whereupon Dr. Johnson kicked a large stone until his foot rebounded -from it. “I refute it _thus_,” he said. There comes a time when the -common, uncomplicated observation of ordinary men makes better sense -than the partisan inventions of social anthropologists. Against their -gauzy dreams of African “civilization,” the obscenities of the Mau -Mau and the atrocities of the Congolese provide reality as hard as -Dr. Johnson’s stone. One refutes it _thus_. - -In 1944, Otto Klineberg brought together in one volume several -of the monographs prepared by American students on the Negro as -background memoranda for Dr. Gunnar Myrdal, the Swedish sociologist -whose subsequent _An American Dilemma_ was to be seen generally, -and influentially, by the Supreme Court of the United States. The -first paper in Klineberg’s collection was put together by Dr. Guy B. -Johnson, professor of sociology and anthropology at the University -of North Carolina. Dr. Johnson served for three years as executive -director of the liberal Southern Regional Council; he is a trustee -of Howard University. These credentials strongly suggest that Dr. -Johnson was picked by the Myrdal team to describe “the Stereotype -of the American Negro” on the assumption that he would summarize -the popular conception of the Negro only to say, in the end, that -there isn’t a word of truth in it. If so, the Myrdal associates must -have been startled by the blunt memorandum Dr. Johnson prepared. He -went through the works of thirty-one representative Negro writers -and forty-two representative white writers, covering the entire -spectrum of political coloration, and boiled down his findings under -twelve headings. His list, he emphasized, was not a list of “race” -characteristics. It was “a descriptive list, based upon a fair degree -of consensus, of the interests, habits and tendencies which might -serve to characterize the ‘typical’ Negro.” This list of “Negro -personality and culture traits” follows: - - _Mental_: Relatively low intellectual interests; good memory; - facile associations of ideas. - - _Temperamental_: Gregariousness or high interest in social - contacts; philosophical or get-the-most-out-of-life type of - adjustment; high aesthetic interests; love of subtlety and - indirection; adaptability. - - _Aesthetic_: Love of music and dance; oratory and power of - self-expression; high interest in and appreciation of the artistic. - - _Economic_: Relatively low interest in material things, such as - care of money, property, tools, etc.; line of least resistance in - habits of work; relative lack of self-reliance. - - _Personal morals_: Double standard of morals and ethics, i.e., one - for his behavior toward Negroes and another for his behavior toward - whites; in sexual conduct, higher interest in sex, high sexual - indulgence, and larger sphere of permissive sexual relations. - - _Family and home life_: Relatively low solidarity; high frequency - of common-law matings and separations; role of mother strong; - warmth of affection toward children; high rate of illegitimacy. - - _Religion and the supernatural_: Rather high emotional - tone; personalization of God and saints; high interest in - “superstition”--i.e., belief in various supernatural forces and - ways of controlling them. - - _Law observance_: Relatively high incidence of social disorder; - drunkenness, fighting, gambling, petty stealing, etc.; resentment - against the white man’s law. - - _Public manners_: Tendency toward extroversion in public contact; - easy sociability, loud talk; relative carelessness in speech and - dress. - - _Race pride_: Not yet highly developed; inferiority feelings - common; acceptance of white standards of physical beauty to a large - extent. - - _Race consciousness and leadership_: Lack of cohesion; high - intragroup conflict and cleavage; distrust of leaders; lack of - strong race-wide leadership. - -Now, what does Dr. Johnson say about this Negro “stereotype”? Insofar -as the list of characteristics has any validity, he comments, it is -more applicable to the Negro masses than to the minority of highly -sophisticated and acculturated Negroes. But how much validity does it -have? Here was the shocker. For Dr. Johnson himself noted that these -same characteristics had been attributed to the Negro by both white -and Negro writers; and this being so, “there is more than a slight -presumption in favor of the reality of the characteristics.” He -suggested that the Myrdal associates “assume that after all there is -_some_ truth or basis of reality to the traits which are persistently -mentioned in literature and in popular thinking.” - -“It is true,” Dr. Johnson remarked, “that the whole trend of -scholarship at present is to look upon the traits which the dominant -group attributes to a minority group as nothing more than stereotypes -which have been invented for the express purpose of justifying the -position of the dominant group and controlling the status of the -subordinate group. These stereotypes are sometimes referred to as -myths, the implication being that they have no realistic basis -whatever. It should be pointed out, however, that it is probably not -necessary for a dominant group such as the white people in America, -to invent and perpetuate stereotypes which are wholly unfair and -untrue in order to maintain its own status of dominance.... The point -here being made, which is simple and which rests upon a common-sense -assumption, is that the stereotypes which a dominant group develops -concerning the traits of a subordinate group will be to some extent -based upon observable characteristics in the subordinate group, and -that while the stereotypes may be permeated with prejudice and with -the ideology of inferiority, _they may still reflect a certain amount -of truth concerning the subordinate group_. In other words, if we -can deduct from the popular stereotypes the moral judgments and the -implications of inferiority and the exaggerations, we may have left a -body of belief which affords considerable insight into the traits of -the subordinate group.” [Emphasis added.] - -The Johnson list goes to the very heart of the South’s resistance to -the desegregation of its public schools. When it is asked why the -South opposes integration, one might provide a tolerably complete -answer simply by citing Dr. Johnson’s twelve summary findings: _This -is why._ The most Dr. Johnson will say of the “stereotype” is that -it contains a “certain amount of truth.” In my own observation, and -in the observation of the white South generally, the list contains a -vast amount of truth. I would dissent from the Johnson findings on -a couple of points only: I doubt that the “Negro masses” (any more -than the white masses) have a “high interest in and appreciation -of the artistic,” and it seems to me the summary of the Negro’s -typical “public manners” is overdrawn. Since 1943, when Dr. Johnson -prepared his summary, a phenomenal growth has taken place in a Negro -middle class, and much of the “loud talk” and “relative carelessness -in speech and dress” has given way to cultivated speech and to a -certain elegance in dress. In my observation, the colored children -of Richmond frequently are cleaner, shinier, and more neatly dressed -than many of their white counterparts. - -In general, however, this purported “stereotype” provides an accurate -and faithful mold of typical Negro behavior and personality. Are -these traits a consequence of racial inheritance? The overwhelmingly -popular view of anthropologists, social and physical, is that these -are _not_ innate characteristics. The entire school of Franz Boas, -embraced by Kluckhohn, Benedict, Klineberg, Clark, Rose, Comas, -Montagu, and many others, holds firmly, and in some cases almost -hysterically, that whatever lags may be observed in typically -Negro culture, as contrasted with typically white culture, these -shortcomings are entirely owing to environment. As the Group for the -Advancement of Psychiatry puts it, “these handicaps are a consequence -of racial discrimination rather than of racial inferiority.” - -The view, however, is not unanimous, nor is the manner in which these -“environmental” views are advanced universally acclaimed. - -“If we in America are going to make any sense out of the Supreme -Court’s desegregation decision,” Dr. Frank C. J. McGurk has remarked, -“we will have to be more factual about race differences and much -less emotional. We can have our dreams, if we like to dream, but we -should be willing to distinguish between dreams and reality. Already, -we have gone too far toward confusing these two things. As far as -psychological differences between Negroes and whites are concerned, -we have wished--and dreamed that there were no such differences. We -have identified this wish with reality, and on it we have established -a race relations policy that was so clearly a failure that we had to -appeal to distorting propaganda for its support.... There is ample -evidence that there are psychological differences between Negroes and -whites. Moreover, these differences are, today, of about the same -magnitude as they were two generations ago. These differences are not -the result of differences in social and economic opportunities, and -they will not disappear as the social and economic opportunities of -Negroes and whites are equalized.” - -Dr. McGurk is associate professor of psychology at Villanova. The -quotation comes from his famous (or infamous, depending on one’s -point of view) article in _U. S. News & World Report_ of September -21, 1956. Several years later, Dr. McGurk provided an introduction -for Nathaniel Weyl’s _The Negro in American Civilization_, in which -he expanded briefly on the same theme. Weyl’s book, published by -Public Affairs Press in 1960, is an almost indispensable work to -the student of this subject who is sincerely interested in getting -“both sides.” (Another valuable work, also published by Public -Affairs Press, is Carleton Putnam’s _Race and Reason: A Yankee -View_; Putnam has driven the Liberal anthropologists practically -to apoplexy by the unfair tactic of reading their works and taking -them seriously--something no layman is expected to do. The rule is -that non-anthropologists must treat anthropologists respectfully, -even when anthropologists write nonsense). Like Putnam, Weyl was -raised and educated in the integrated North. He set out to write his -book with Northern preconceptions; but the more deeply he dug for -facts, the more he discovered that “material which passed for the -objective findings of social scientists could more accurately be -characterized as rationalizations and propaganda wearing academic cap -and gown.” He demonstrated the intellectual courage to abandon his -preconceived ideas, and to conclude after an exhaustive study that -“the presumption is strongly in favor of innate psychic differences.” - -In his introduction, Dr. McGurk describes Weyl’s book as a refreshing -antidote to the one-sided, environmentalist argumentation that is -all most college students ever receive, and he goes on to urge that -from the standpoint of the scientist, the problem of race should -be studied in an objective manner: “Appeals to beliefs, morals, -ethics, or political philosophy are out of place; the issue is one -of fact.... Ethnic differences are facts. In the psychic area, these -differences are important facts. It seems much more sane to face -these differences and investigate their causes impartially than to -play ostrich about them.” - -Let us go back, for a moment, to Dr. Johnson’s “stereotype.” -Manifestly, many of the characteristics he finds most widely -attributed to the Negro are incapable of statistical measurement. -Empirical data could not well be compiled, for example, on “relative -lack of self-reliance,” or “love of subtlety and indirection.” But -one characteristic found to be more typical of the Negro than of the -white is “high sexual indulgence, larger sphere of permissive sexual -relations, ... and high rate of illegitimacy.” The illegitimacy, at -least, can be statistically tabulated, and the appalling facts can be -faced. - -What are the facts? First, the illegitimacy rate among Negroes -in this country is roughly _ten times_ the illegitimacy rate -among whites. Second, the condition is not improving, but on the -contrary appears in many areas to be growing worse. Third, a -disproportionately high rate of illegitimacy among Negroes obtains -not only in the South, but throughout the United States. - -These are the grim figures from the National Office of Vital -Statistics: - - -------------------------------------------------- - ILLEGITIMATES AS A PERCENTAGE OF TOTAL LIVE BIRTHS - UNITED STATES, 1940-1959 - -------------------------------------------------- - _1940_ _1945_ _1950_ _1955_ _1959_ - White 1.95 2.36 1.75 1.86 2.21 - Nonwhite 16.83 17.93 17.96 20.24 21.80 - -------------------------------------------------- - -Consider the record in two Southern States, Mississippi and Virginia. -Here are the figures from Mississippi: - - ----------------------------------------------------------------------- - ILLEGITIMATE BIRTHS, MISSISSIPPI, 1935-1960 - ----------------------------------------- - WHITE NEGRO - ----------------------------------------------------------------------- - _Per cent _Per cent _Per cent - of all All White All Negro - _Year_ _Number_ Births_ _Number_ Births_ _Number_ Births_ - 1960 8,407 14.2 388 1.4 8,019 25.0 - 1959 8,091 13.4 370 1.3 7,721 23.7 - 1958 7,581 12.8 310 1.2 7,271 22.4 - 1957 7,815 12.9 272 1.0 7,543 22.2 - 1956 7,791 12.5 294 1.1 7,497 21.5 - 1955 7,909 12.5 274 1.0 7,635 21.4 - 1950 6,778 10.5 283 1.0 6,495 17.4 - 1945 5,499 10.2 223 0.9 5,276 17.5 - 1940 4,699 8.9 268 1.2 4,431 15.0 - 1935 3,978 8.2 265 1.2 3,713 14.1 - ----------------------------------------------------------------------- - -The vital statistics take on additional meaning when they are -translated in terms of human beings. In the five years 1956 through -1960, white mothers in Mississippi gave birth to 1634 illegitimate -children. In the same period, Negro mothers gave birth to 38,051 -illegitimate children. - -Substantially the same picture may be seen in the records of -Virginia. Between 1938 and 1958, the white illegitimacy rate in -Virginia declined slightly, from 2.6 to 2.3 per cent. In this same -period, which witnessed astonishing gains in Negro education, Negro -housing, Negro income, and Negro job opportunities, the rate of Negro -illegitimacy increased from 19.5 per cent to 22.9 per cent. - -The records of five Virginia cities and five Virginia counties of -substantial Negro population are entirely typical: - - ----------------------------------------------------------------------- - ILLEGITIMATE BIRTHS AS A PERCENTAGE - OF TOTAL NEGRO BIRTHS - - CITIES - _Richmond_ _Norfolk_ _Roanoke_ _Danville_ _Lynchburg_ - 1935-39 27.2 24.6 25.1 26.6 29.5 - 1955-58 30.3 22.0 26.6 29.0 28.1 - - COUNTIES - _Prince _Charles - _Halifax_ Edward_ _Pittsylvania_ City_ _Greensville_ - 1935-39 12.4 14.5 12.8 14.3 14.2 - 1955-58 19.9 21.5 18.6 23.4 22.0 - ----------------------------------------------------------------------- - -The U. S. Department of Health, Education and Welfare periodically -releases data on the nation as a whole. The figures for 1957 -illustrate the story. In that year, 1.9 per cent of all white -births were illegitimate; 21.7 per cent of all Negro births were -illegitimate. Negro illegitimacy ran as high as 27.9 per cent in St. -Louis, 29.3 per cent in Atlanta, and 34.6 per cent in Knoxville. The -influx of Negroes into Washington, D. C., has given the nation’s -capital, to the nation’s shame, what the Washington _Post_ has -termed “undisputed first place in illegitimacy.” In 1957, nearly 19 -per cent of all births recorded in the District of Columbia were -illegitimate--5.8 per cent of the whites and 26.5 per cent of the -Negroes. - -Now, a widespread custom among Negro apologists is to scoff these -figures away. It is said, for one thing, that there is “a relatively -greater understatement of illegitimacy in the white group than in -the nonwhite.” For my own part, I doubt this exceedingly. It is -said, also, that a greater percentage of extramarital pregnancies -are aborted among white girls than among Negro girls. Perhaps. A -third line of rationalization typically has been advanced by the -_Norfolk Journal and Guide_, a Negro newspaper; this has to do with -the fact that slaves were not permitted to marry prior to 1865, -though they were encouraged to cohabit, and “it is foolish to -suppose that a suppressed and constantly vilified minority group -could wholly recover from the practice in a few generations.” A -related argument, if it is an argument at all, is that in pre-War -times “many white slave-owners promiscuously exploited their slave -women sexually.” Other rationalizations put some of the blame for -Negro sexual looseness on housing, economic opportunity, low income -levels, and the like. Generally, it is all charged to the “system of -segregation,” a charge that tends to collapse when it is observed -that the high rates of Negro illegitimacy recorded in the South are -not materially different in the integrated climes of Pennsylvania, -Minnesota, Illinois, Missouri, and West Virginia. - -But the basic validity of the statistics is not entirely discounted, -even by Negro commentators. Carl Rowan, the Minneapolis newspaperman -who came to the State Department with the New Frontier, faced up -to them (after a good deal of preliminary squirming) in _Harper’s_ -in 1961. A leading Negro educator, President Thomas H. Henderson -of Virginia Union University, offered some thoughtful comments in -a paper delivered before the Virginia Conference of Social Work in -1957. He said: - -“Let me begin by saying what the problem of a high illegitimacy -rate among Negroes is not. It is not, first of all, a statistical -illusion.... [T]he illegitimacy rate for Virginia Negroes has been -ten times as high as that for whites each year for several decades. -After subducting the maximum influence of all possible sources -of error in the statistics, the consistency and magnitude of the -differential leaves no doubt that a real and disturbing difference -exists.” - -The problem cannot be blamed, said Dr. Henderson, on any particular -desire to obtain public benefits under the program of Aid to -Dependent Children. Moreover, “it is not to any great degree a -problem of racial interbreeding--every indication points to a steady -decrease in interbreeding since before the dawn of this century.” -The problem is “overwhelmingly a problem of illegitimacy with both -parents colored.” He added: - -“The problem is not the result of innate differences between the -races. It would be less painful if it were. If the Negro had innate -moral weakness or blindness, if he had an innately inferior -intelligence, or in some inborn way either his sex drive or his -fertility were somehow different, we could shrug off the problem by -saying, ‘God made it that way; there’s nothing to do about it.’ But -we are faced with the hard fact that reputable scientists regard as -fruitless all efforts to find valid evidence of any innate moral -weakness of the Negro or any innate difference in personality, -intelligence, or sexual behavior.” - -Dr. Henderson went on in his paper to summarize many of the -mitigating factors earlier mentioned, including socio-economic -status, recreational limitations, inadequate sex education -within Negro families and schools, and the tensions generated -by discrimination. But he suspected that these various factors -together do not account for more than half the problem: “Without -a statistically valid basis for it, my opinion is strong that the -primary factor is that of motivation. _The simple fact is that many -Negro boys and girls do not want strongly enough to avoid producing -illegitimate children._ The rank and file of those who are at the -lowest social levels have not changed their attitude to illegitimacy -since the days of slavery when sexual laxness in Negroes was -tolerated and even encouraged.” [Emphasis supplied.] - -A notable comment along that line appeared in the St. Louis _Evening -Whirl_, a Negro newspaper, early in 1960, in an account of a colored -woman who complained, after giving birth to her ninth illegitimate -child, that her allowance under Aid to Dependent Children had been -cut from $185 to $110 a month. She felt “discriminated against.” Said -the _Whirl_ editorially: - - Mrs. Brown thinks that she is entitled to live a normal life with - a boyfriend and not have to waste money running around hotels and - rooming houses. They can’t afford it. - - Mrs. Brown is young and normal. She is only 29. She cannot stop - having a boyfriend and romance now. She believes that poor people - are entitled to social pleasures and normal living. - - This newspaper agrees with this version of living. The rich - have everything they want. Why can’t poor people have a little - fun? A lot of our foolish laws need changing. We do not condemn - Mrs. Brown. We rather praise her. She is living proof of a good - woman--one who is promulgating her race. - - When our race increases in number to a much larger extent, we can - demand more, get more, and show our power and authority at the - polls. - -This remarkable attitude, which views the sexual act as casually -as a good-night kiss, is reported by school administrators and -law-enforcement officials among Negroes across the nation. In -Philadelphia, District Attorney Victor H. Blanc in 1958 typically -reported confiscation of large quantities of pornographic pictures -among Negro pupils in the public schools; much of the material was -intended to encourage interracial “Sex Clubs” led by Negro teen-agers -who regard fornication, in the Negro newspaper’s phrase, as “social -pleasures and normal living.” - -Another of Dr. Johnson’s characteristics, in the list that made -up his “stereotype” of the typical Negro, was summarized under -“law observance” as “relatively high incidence of social disorder; -drunkenness, fighting, gambling, petty stealing, etc.” Here, too, -some measurable data may be had. Nathaniel Weyl has summed up the -picture succinctly: - -“For well over a century the Negro has been responsible for an -alarmingly disproportionate share of American crime. In 1950 his -felony rate was almost three times the national average. Thirty per -cent of the two million persons arrested for major crimes in 1957 -were colored. - -“While his contribution to all types of crime, except political -crime, has been excessive, the Negro has gravitated toward the most -serious offenses and, above all, toward crimes of violence. In recent -years he has accounted for _well over half_ the nation’s murders, -non-negligent manslaughters, aggravated assaults and robberies.” -[Emphasis supplied.] - -As in the case of illegitimacy, Negro crime rates have not tended -to decline significantly with the Negro’s rising level of income -and opportunity. About 34 per cent of the convicts committed to -jail in 1910 were colored; the figure is about 30 per cent for -1960. Historically, Negro crime rates have been higher in the -more-or-less-integrated North than in the more-or-less-segregated -South. In Philadelphia, where the shockingly brutal murder of -a Korean student in 1958 prompted some candid and critical -investigations, it was found that Negro teen-agers, representing 30 -per cent of the population, were guilty of 75 per cent of juvenile -crime. In one nineteen-day period given special study, Negroes were -found responsible for forty-five of fifty-three “headings,” in -which victims were savagely beaten with clubs and iron pipes; they -also were charged with thirty-two of thirty-eight murders and 340 -of 437 cases of aggravated assault. Eighty per cent of the inmates -of Philadelphia prisons at that time were Negroes. The figures are -entirely comparable in New York, where one city magistrate, after -hearing an unusually shocking case of Negro violence, asked a -rhetorical question that hangs quivering in the air: “What kind of -animals do we have in this town?” - -But the problem of disproportionate criminality among Negroes is -not peculiar to Harlem or South Chicago or Philadelphia, nor is -it an especially new problem. Between 1930 and 1959, when Negroes -represented about 10 per cent of the population, Negroes made up -54 per cent of those executed for crimes. And in a typical year, -substantially similar figures are reported across the nation. The -FBI’s _Uniform Crime Reports_ for 1960 provide these figures on -arrests for major crimes in 2446 cities having a population of -73,473,000: - - ------------------------------------------------------------- - _Per cent - _Offense Charged_ _Total_ _White_ _Negro_ Negro_ - ------------------------------------------------------------- - Murder and nonnegligent - homicide 4,120 1,536 2,511 60.9 - Robbery 25,501 10,994 14,155 55.5 - Aggravated assault 127,728 70,122 54,737 42.9 - Burglary 102,536 66,130 33,536 34.7 - Larceny-theft 199,063 129,158 65,063 32.7 - Forcible rape 5,326 2,459 2,778 52.2 - Prostitution and - commercialized vice 23,031 11,046 11,594 50.3 - Other sex offenses 40,702 27,813 11,901 29.2 - Narcotic drug laws 16,370 8,506 7,570 46.2 - Weapons; carrying, - possessing, etc. 32,124 14,729 17,005 52.9 - ------------------------------------------------------------- - -When it is kept in mind that the cities included in the FBI reports -constitute a fair random sample, North and South, small towns and -large, the sobering nature of these figures becomes apparent. - -What can explain this dismaying tendency of the Negro toward -disproportionate criminality? The same rationalizations (with a few -ludicrous variations) are trotted out that are produced to discredit -the figures on illegitimacy. Gunnar Myrdal devoted twelve pages of -_An American Dilemma_ to scoffs, sneers, apologies, explanations, -highflown fabrications, and wildly speculative generalities, all -intended to whitewash the Negro record. - -First, says Myrdal, the statistics are no good. Figures on crime -are generally inadequate, and statistics on Negro crime are -even more so. Such data generally suffer from incomplete and -inaccurate reporting, variations among States in definitions and -classifications; and in the case of the Negro, the figures are -distorted by special weaknesses owing to the caste situation and to -certain characteristics of the Negro population. “It happens that -Negroes are seldom in a position to commit ... white collar crimes -[such as tax evasion, conspiracy to violate antitrust laws, fraud -and racketeering]; they commit the crimes which much more frequently -result in apprehension and punishment.” This is a chief source of -error when attempting to compare statistics on Negro and white crime. - -Myrdal then paints a picture of the South no Southerner would -recognize. For a jaw-dropping example of the strange fabrications -that have made Myrdal’s work notorious, consider the following: - - In the South, inequality of justice seems to be the most important - factor in making the statistics on Negro crime and white crime - not comparable: ... [I]n any crime which remotely affects a white - man, Negroes are more likely to be arrested than are whites, more - likely to be indicted after arrest, more likely to be convicted - in court and punished. Negroes will be arrested on the slightest - suspicion, or on no suspicion at all, merely to provide witnesses - or to work during a labor shortage in violation of anti-peonage - laws. The popular belief that all Negroes are inherently criminal - operates to increase arrests, and the Negro’s lack of political - power prevents a white policeman from worrying about how many Negro - arrests he makes. Some white criminals have made use of these - prejudices to divert suspicion away from themselves onto Negroes: - for example, there are many documented cases of white robbers - blackening their faces when committing crimes. In the Southern - court, a Negro will seldom be treated seriously, and his testimony - against a white man will be ignored, if he is permitted to express - it at all. When sentenced he is usually given a heavier punishment - and probation or suspended sentence is seldom allowed him.... - -Myrdal goes on to remark that when white lawyers, installment -collectors, insurance agents, plantation owners, and others cheat the -Negroes of the South, they are “never” regarded as criminals. But -stealing by Negroes from whites is almost always punished as a crime. - -These things occur in the North, Myrdal asserts, although in a much -smaller degree. In the North, the trouble is that the Negro has -brought certain cultural practices with him from the South. Also, the -Negro is poor. He cannot bribe policemen to let him off; he has no -influential connections; he does not know the important people who -can help him out of trouble. - -In brief, Myrdal says, the statistics “do not provide a fair index -of Negro crime.” And for a typical example of the fallacies that -permeate the statistics, “the Negro rape rate, like other Negro -crime rates, is fallaciously high: white women may try to extricate -themselves from the consequences of sexual delinquency by blaming or -framing Negro men; a white woman who has a Negro lover can get rid -of him or avoid social ostracism following detection by accusing him -of rape; neurotic white women may hysterically interpret an innocent -action as an ‘attack’ by a Negro.” - -In addition to the statistical distortions that result (1) from basic -discrimination against Negroes and (2) from the Negro’s poverty and -ignorance of the law, Myrdal finds a third “group of causes of Negro -crime.” This, he says, is “connected with the slavery tradition and -the caste situation.” Negroes in the South traditionally have been -permitted to pilfer small items from their employers; the practice -has imbued them with a general disrespect for property rights. And -their feeling that there is nothing wrong with petty stealing “is -strengthened by the fact that Negroes know that their white employers -are exploiting them.” - -Beyond all this, Myrdal says, as a cause of “Negro crime,” is the -Negro’s hatred of whites. The revenge motive figures in Negro -muggings and headings: “Because the white man regards him as apart -from society, it is natural for a Negro to regard himself as apart. -He does not participate in making the laws in the South, and he has -little chance to enforce them. To the average lower class Negro, -at least in the South, the police, the courts, and even the law -are arbitrary and hostile to Negroes, and thus are to be avoided -or fought against. The ever-present hostility to the law and -law-enforcement agencies on the part of all Southern Negroes and -many Northern Negroes does not often manifest itself in an outbreak -against them because the risks are too great. But occasionally this -hostility does express itself, and then there is crime.” - -Myrdal concludes by asserting: “We know that Negroes are not -biologically more criminal than whites. We do not know definitely -that Negroes are culturally more criminal, although we do know -that they come up against law-enforcement agencies more often. We -suspect that the ‘true’ crime rate--when extraneous influences -are held constant--is higher among Negroes. This is true at least -for such crimes as involve personal violence, petty robbery, and -sexual delinquency--because of the caste system and the slavery -tradition....” - -Myrdal wrote in 1944. The statistics he struggled so wildly to -discredit have not changed significantly in the past eighteen years. -In this period, the Negro’s position in American society has improved -phenomenally; his political power has significantly increased in -most Southern cities and has become decisive in many Northern wards -and congressional districts. In both North and South, Negroes sit -on juries, appear as counsel, serve as police officers. Myrdal’s -specious and shabby rationalizations based upon “discrimination” -simply will not hold up in any national view. And of some of his -fatuous explanations (that many white criminals blacken their faces -to put blame on innocent Negroes, that white women are responsible -for a fallaciously high Negro rape rate because they frame Negro men, -that _all_ Southern Negroes are seized of an _ever-present_ hostility -to law and law enforcement) the less said, the better. Yet Myrdal -is so widely touted as the ablest authority on the American Negro -that the Supreme Court of the United States, in the _Brown_ case, -suggested that his work be “seen generally” as a support for the -court’s reasoning! - -Well, the palpable truth is that many white men also are poor; they -too know frustrations, feel resentments, fear the real world they -live in. But studies of arrests by place of residence, correlated -against census data on housing, suggest no levels of criminality -in poor and underprivileged white neighborhoods that compare with -criminality in generally comparable Negro neighborhoods. Crime -always may be measured by an index of poverty, and it is true that -poverty exists far more widely among Negroes than among whites; but -if poverty were the whole explanation, or even a key explanation, -surely the remarkable increases in Negro per capita income over the -past fifty years should be reflected in some corresponding decrease -in rates of crime among the Negro people. _No such correspondence -exists._ The Negroes of America are better off materially, -culturally, and politically than any Negroid people in the world, and -their lot improves at an incredible speed. Yet there are the facts on -trends in illegitimacy; and there are the facts on trends in crime. -And the insistent _why?_ will not go away. - -Nathaniel Weyl, who started his studies with an environmentalist’s -view, concludes his chapter on Negro criminality with a comment that -the character patterns disclosed by the facts are “presumably genetic -in origin.” Dr. W. C. George, head of the Department of Anatomy at -the University of North Carolina, also tends to find an explanation -in racial factors: “Whatever other virtues Negroes may have, and they -have many, all of the evidence that I know about--and there is a lot -of it--indicates that the Caucasian race is superior to the Negro -race in the creation and maintenance of what we call civilization.” - -A great many white Southerners accept this thesis implicitly and -unquestioningly; they infer the innate “inferiority” of the typical -Negro, in terms of Western cultural values, simply on the basis -of their lifelong observation of the Negro people about them. -No other explanation appeals to their common sense, or to their -native prejudice, or to both. This is something they _know_, and -they profess to know it not in anthropological terms (the weight -of brains, the pigmentation of skins, the length of appendages, -the formation of skull and jaw), but in terms of ordinary human -observation. - -I incline toward this view myself, but I certainly would not assert, -as Myrdal asserts the contrary, that I “know” it to be true. I would -be agreeable to accepting the temperate and tentative conclusion -voiced by Professor G. M. Morant, of England, in a most unlikely -place--an essay in UNESCO’s _Race and Prejudice_ (Columbia, 1961). -The volume as a whole is almost worthless to the objective student; -most of the essays are no more than special pleading by propagandists -against racial prejudice. But Morant examines the evidence of -intelligence tests and other data with a scientist’s objectivity, and -he concludes by saying this: - -“There seems to be no reason why the general rule regarding variation -within and between groups should not apply to mental as well as to -physical characters. If variable characters of the former kind showed -identical distributions for all racial populations, that would be a -situation unparalleled, as far as is known, as regards any physical -character in man or in any other animal. It seems to be impossible -to evade the conclusion that some racial differences in mental -characters must be expected. Existing evidence may not be extensive -and cogent enough to reveal them, but it must be inferred that some -exist....” - -Morant makes the point, in analyzing intelligence-test scores, that -obviously white and Negro scores overlap. Consistently, the most -superior Negroes will score higher as a group than the most inferior -whites as a group. Moreover, the difference between the average -scores of two racial populations may be quite small compared with -the range of scores in either group. But even when this is so, says -Morant, “there may be a marked difference between the relative -frequencies in the population of individuals having extreme values -of the measurement.” And this distinction may be important in the -case of some mental characteristics: “There may be almost equal -proportions of stupid, mediocre, and able people in two populations; -even so, exceptional ability may be found with a frequency of 1 in -1,000 in one group, and of 1 in 10,000 in the other. Having a larger -proportion of exceptionally able members may be a factor which tells -decisively in favor of a population in the course of centuries or -millenniums.” - -The Liberal social anthropologists, to be sure, have denounced this -reasonable hypothesis out of hand; and by effectively dominating the -professional field, they have managed to elevate their own opinions -to the status of truth, to promote speculation to the level of fact, -and to convert surmise deftly into incontrovertible proof. I believe -they have overdone it. They have lost their own case by their own -disgraceful intemperance and intolerance of dissent; they protest -too much; they cover up; they propagandize; they set out not to seek -truth, but “to combat racial prejudice.” - -At the same time, I would insert a comment that some of the more -intemperate protagonists on the segregationist Right have fallen into -the same errors of positivism and unqualified statement. They have -tended to think too much in blanket terms--in literal blacks and -whites--and they have regularly overestimated the factors of heredity -and underestimated the factors of environment. Their position would -be improved if they simply acknowledged that the question of the -Negro’s innate inferiority has not been proved and hence is still -open. - -In terms of the problem immediately at hand, the question of whether -the Negro’s shortcomings are “innate” seems to me largely irrelevant -anyhow. The issue is not likely to be proved to the satisfaction of -either side any time soon; it may not be susceptible of proof at all. -Whether these characteristics are inherited or acquired, they _are_. -And communities North and South (but especially in the South, and -more especially still, in the rural South) must cope with conditions -as they find them. The ruins of Zimbadwe are a long way from Prince -Edward County, Virginia, and the finest analysis of electroencephalic -findings among the Zulus is of small importance in teaching a class -of Alabama sixth-graders. The arguments of anthropology are of -interest to the South, and I would not wish to leave any impression -that would minimize their importance; the fear of ultimate racial -interbreeding, encouraged by prospective generations of desegregated -and integrated school systems, is a very real fear in the South and -not an imagined one. If these Negro characteristics are innate, the -white Southerner sees nothing but disaster to his race in risking -an accelerated intermingling of blood lines. And even if these -Negro characteristics are not innate, the white Southerner wants no -intimate association with them anyhow. And he is determined not to -let his children be guinea pigs for any man’s social experiment. - - -VII - -The second of the South’s principal arguments, related to -anthropological considerations but of more immediate application, -may be termed the argument of practicality: Even if it be true, as -the liberal social anthropologists insist, that there is no innate -cultural or intellectual inferiority in the Negro race as such, the -plain fact is that here and now, there are immense differences in the -educational achievements and apparent aptitudes of the two races; -and these differences, especially in small rural communities, make -true integration of public schools an impossibility. Beyond this, the -educational needs of white and Negro children in the South, in terms -of the lives they will lead and the employment they predictably will -find, are quite different; and these differences, especially in the -small counties, create formidable problems of curriculum. Finally, -the temper, and prejudices, and feelings of the white taxpayers, who -overwhelmingly bear the bulk of public school costs, simply cannot -be discounted altogether; political realities have to be considered, -and grave thought must be given, as a practical matter, to the social -upheaval that inevitably would accompany massive desegregation of -public schools in those areas of the South where Negro populations -are greatest and traditions of racial separation are most deeply -ingrained. - -As Otto Klineberg points out in _Characteristics of the American -Negro_, efforts to test the intelligence or the educational aptitude -of Negro children go back a long way. In 1897, G. R. Stetson gave -memory tests to fourth- and fifth-graders in the District of -Columbia; the Negro pupils, who averaged a year and a half older than -the whites, proved superior in memorizing three out of four stanzas -of poetry. Truly is it said that the first shall be last and the -last shall be first, for Stetson’s findings of 1897 represent one of -the very few such inquiries in which Negroes have scored higher than -whites. Since then, an exhaustive series of tests almost invariably -have produced data pointing just the other way. - -In 1913, A. C. Strong studied white and Negro school children of -Columbia, S. C., and found the colored children mentally younger. The -following year, B. A. Phillips reported on an analysis of twenty-nine -white and twenty-nine Negro children who had been equated in terms of -home environment, and found such a difference in mentality between -the two groups that he wondered if they should be instructed under -the same curriculum. In 1916, G. O. Ferguson tested white and Negro -pupils of Richmond, Fredericksburg, and Newport News, Va., and found -the superiority of the white group indubitable. In this same study he -attempted further to classify the Negro subjects according to skin -color (pure Negro, three-fourths Negro, mulatto, and quadroon), and -found a plain correlation between higher scores and lighter skins. - -Intelligence testing by racial groups was launched on a large scale -with World War I. As an aid to military authorities, three separate -tests were devised. The first, known as Army A, never was very widely -used; it contained some four hundred items and featured two tests, of -immediate memory and cancellation, which proved to be impracticable. -Analyses of findings were made, however, by Ferguson and by Robert -M. Yerkes, of 10,276 Negro soldiers and 38,628 white soldiers tested -on Army A at Camp Lee and Camp Dix. The median score among Negro -recruits ranged from 14.8 at Lee to 53 at Dix, the white recruits -from 116 at Lee to 171 at Dix. - -In an effort to devise a more useful test, a committee of five -psychologists, led by Yerkes, was appointed by the American -Psychological Association in April 1917. They put together tests -that came to be known as Army Alpha and Army Beta. The tests, which -brought together the most advanced psychological knowledge of -their day, still are widely respected by psychologists forty-five -years later. Henry E. Garrett, professor emeritus of psychology at -Columbia University, has said of them that “owing to the size of the -groups and the lack of special selection, the army test data yield -probably the fairest and most unbiased comparison of Negro and white -intelligence which we possess.” - -The Alpha test was divided into eight sections, testing the -examinee’s ability in following directions, arithmetic problems, -practical judgment, synonyms and antonyms, disarranged sentences, -completion of number series, analogies, and general information. The -psychologists’ committee realized, however, that because of its heavy -reliance upon literacy and cultural factors, the Alpha test would -tell Army examiners little about the intelligence and capacity of -recruits whose schooling was limited and whose cultural background -was poor. Hence the Beta test was devised, as a nonlanguage test on -which all illiterates could compete equally. - -The average score of the white soldier on the Alpha test was 59, -that of the Northern Negro 39, and that of the Southern Negro 12. -The better educational equipment of the whites presumably might -account for some of this astonishing difference, without considering -any questions of innate ability at all. But this superior equipment -did not figure on the Beta test. And on Beta, the whites averaged -43, the Northern Negro 33, and the Southern Negro 20. Analyzing -these Beta findings in one study of men tested at Camp Grant, M. -R. Trabue concluded that the average Northern Negro recruit had an -ability to learn new things about equivalent to that of the average -eleven-year-old white boy, and the average Southern Negro recruit a -mental capacity at the nine-year-old level. - -Notably, the figures on Negro “overlapping” were not significantly -different for the two tests. It was found that only 27 per cent of -the Negroes exceeded the white average score on Alpha. On Beta, -the figure was 29 per cent. As Dr. McGurk has pointed out, if the -Negroes’ comparatively poor scores were entirely a consequence of -social and economic differences, a lessening of these differences -should have produced, in the Beta test, a corresponding increase -in the Negro overlap. Put another way: “An improvement in cultural -opportunities should result in an improvement in the capacity for -education. If cultural opportunities are not important in determining -capacity for education, improving the cultural opportunities will -have no effect on capacity for education.” And Dr. McGurk, it should -be remembered, is a Villanova social scientist who has devoted a -lifetime to research in this field. - -The massive statistics of the World War I tests have served as grist -for the mills of a hundred psychologists and social anthropologists. -Those of the equalitarian school have done some curious things -with the figures, in a strained effort to prove that significant -differences in racial scores are related solely to environment and -not at all to heredity. The student who inquires into the literature -scarcely can pick up an equalitarian book that does not offer the -following table: - - ----------------------------------------------------------- - SOUTHERN WHITES AND NORTHERN NEGROES, - ARMY TESTS, 1918 - - _Whites_ _Negroes_ - _State_ _Median score_ _State_ _Median score_ - ----------------------------------------------------------- - Mississippi 41.25 Pennsylvania 42.00 - Kentucky 41.50 New York 45.00 - Arkansas 41.55 Illinois 47.35 - Georgia 42.12 Ohio 49.50 - ----------------------------------------------------------- - -Klineberg, who used this table in his 1944 work, says the comparison -shows that Northern Negroes “are superior to the white groups from a -number of Southern States.” - -Taken at face value, that is certainly one conclusion that might be -drawn, at least as to four Southern States, but the figures merit a -closer look. What Klineberg did, as Garrett has shown, was to take -the four Southern States where the white medians were _lowest_ and -compare them with the four Northern States where the Negro medians -were _highest_. Beyond demonstrating that Negroes in some Northern -States scored higher than whites in some Southern States, this widely -reproduced table tells us little. Moreover, Klineberg--and Montagu, -and Benedict, and others who are so fond of this data--do not present -the figures from the four Northern States that might truly have -significance in terms of local problems of public education. Garrett, -whose computations of medians differ slightly from Klineberg’s, puts -the data together in this fashion: - - --------------------------------------------------------- - _Number Tested_ _White_ _Negro_ - _State_ _White_ _Negro_ _Median_ _Median_ - --------------------------------------------------------- - Pennsylvania 3,089 498 64.6 41.5 - New York 2,843 850 64.0 44.5 - Illinois 2,056 578 63.0 46.9 - Ohio 2,318 152 66.7 48.8 - --------------------------------------------------------- - -Garrett then makes the self-evident point that Negroes in these four -States scored as far below white soldiers _from the same States_ as -they scored below whites in the country as a whole. The student who -wants to dig more deeply into these World War I findings will find -them fully reported in professional literature. Audrey Shuey’s _The -Testing of Negro Intelligence_ summarizes the data and provides an -extensive bibliography of work done on the figures. - -It is curious that so much labor has been spent on the World War I -figures, and relatively so little on the more up-to-date data from -World War II and Korea. Yet from one point of view this is not so -curious either: In the thirty-six years between 1917 and 1943, the -American Negro experienced prodigious gains in educational, cultural, -economic, and social opportunities. Surely, it might be thought, -these gains would have been reflected in some significant improvement -in his military test scores. No such improvement can be detected. -Nathaniel Weyl has summed up the facts: - -“A comparison of Army General Classification Test (AGCT) scores of -white and Negro enlisted men in military service in March, 1945, -shows that 6.3 per cent of the whites, but only 1.0 per cent of the -Negroes, were in Group I (very superior) and that 39.7 per cent of -the whites, but only 7.4 per cent of the Negroes, were in the first -two (better than average) categories. On the other hand, only 26.9 -per cent of the whites, as contrasted with 77.7 per cent of the -Negroes (more than three-fourths of them), were in the two bottom -(inferior and very inferior) groups.” - -In World War I, Weyl continues, the Negro overlap on the combined -tests was 13.5 per cent--that is, 13½ Negroes in 100 scored as well -as the average white man. By the time of World War II, the overlap -had dropped to 12 per cent, and if the scores of mental rejects are -included for both races, to only 10 per cent. Still more embarrassing -to the equalitarians, their precious comparisons of World War I -between Northern Negroes and Southern whites tend to dissolve in -the findings of World War II. Weyl summarizes a comparison between -Negroes examined in the First Command Area (New England), where -Negroes had the highest median, with white recruits examined in the -Fourth Command Area (Southern), where white medians were lowest. -Some 34 per cent of the Southern whites made scores of superior or -very superior; only 9 per cent of the Northern Negroes were in these -brackets. - -Finally, on the matter of AGCT scores, mention may be made of an -unpublished master’s thesis by B. E. Fulk of the University of -Illinois; the paper is cited by Shuey in her encompassing survey -of the field. Fulk obtained data on 2174 white and 2010 Negro -enlisted men examined by the Army Air Force Service Command. He then -correlated their AGCT scores in terms of the years of education they -had experienced. It may well be true that the Negroes here tested had -attended poorer schools than the whites; but to persons interested -in understanding some of the real and practical problems of school -desegregation, Fulk’s tabulations will be rewarding (see page 78). - -If the formidable gaps shown by those figures do not persuade the -South’s critics of the difficult problems implicit in welding -together two country high schools, one white, the other Negro, -perhaps no evidence would persuade them. Yet abundant other evidence -is widely available. - - ------------------------------------------------------------- - _Years of _Median _Median - Education_ White_ Negro_ - ------------------------------------------------------------- - 0 82.45 59.35 - 1 91.20 58.40 - 2 88.45 57.75 - 3 91.20 57.60 - 4 90.65 59.80 - 5 90.35 54.65 - 6 87.95 59.60 - 7 85.40 64.45 - 8 94.50 69.25 - 9 100.70 73.35 - 10 102.50 78.95 - 11 107.95 85.95 - 12 109.20 93.05 - ------- ------- - Total 95.10 68.95 - -------------------------------------------------------- - -Dr. Shuey has put the facts together in a book that cannot be -overlooked by serious students of the desegregation problem. She -is head of the Department of Psychology at Randolph-Macon Woman’s -College in Virginia. Her massive labors have had a stunning impact -upon the more idealistic advocates of immediate integration. Here -in cold statistical tables, unwarmed by subjective opinion, she -has summarized more than forty years of investigation into Negro -intelligence. These are not her findings; they are the findings of -scholars who have done original or independent research. No matter -how these findings may be explained away (and the NAACP has retained -a committee of psychologists now seeking desperately to explain them -away), the figures speak tellingly of the problems that educators -must face in mixing the two races massively in the same classrooms. - -The literature discloses that at the preschool level, there is a -marked but not unmanageable difference between white and Negro -aptitudes. A typical Stanford-Binet test of five-year-olds, for -example, may turn up a median of 112 for white children, 95.8 for -Negro children. The gap is dismayingly wide, but it can be coped with. - -Thereafter, as the children move into upper grades, the tendency is -for the gap to grow steadily greater. Dr. Shuey made an analysis of -101 tests given to Negro elementary-school children from one end of -the country to the other. Some of these tests were given by Negro -psychologists, in an effort to improve the rapport between examiner -and subject. In other investigations, careful efforts were made to -equate the home backgrounds of white and Negro subjects. All told, -the 101 investigations cover findings on 51,000 colored children, and -provide 310 comparisons for relative standing of colored and white. -“In 297 of the comparisons,” Dr. Shuey notes, “the colored children -scored the lower; in 144 they were lower than the white norms.” - -Dr. McGurk’s analysis of the professional literature in this field -closely parallels Dr. Shuey’s report. Between 1935 and 1950, he has -stated, sixty-three articles appeared in professional journals of -psychology dealing with Negro-white test-score differences. _In all -sixty-three of them_, the average test score of the Negro subjects -was found to be lower than the average test score of the white -subjects with whom they were compared. Six of these investigations -are regarded by McGurk as especially significant: - -1. A study of a group of Canadian Negroes and whites in 1939 by H. -A. Tanser. The Negro children tested were the descendants of slaves -who had escaped from the South prior to and during the Civil War. -Their social and economic opportunities had been generally equal -to those of whites in the area. Yet the findings of three standard -psychological tests administered to children in grades 1-8 found the -Negro averages far below the white averages at every age and every -grade. For the total groups, only 13 to 20 per cent of the Negroes -overlapped the white average, and in no case did the overlap exceed -20 per cent. - -2. A study of white and Negro children in a poor section of rural -Virginia, done by M. Bruce in 1940. In order to eliminate the factor -of social and economic differences, the author first administered a -test of socio-economic status, and then paired off her subjects so -that each member of a pair, one Negro child and one white child, had -the same socio-economic score. Negro overlapping on three separate -tests ranged between 15 per cent and 20 per cent. - -3. A study by Dr. Shuey of white and Negro college students in -New York, in 1942. Again, the Negro and white students were first -given socio-economic tests in order to pair them off. The Negro -overlap amounted to 18 per cent. Of this investigation, Dr. McGurk -says: “Considering that this was a highly selected group of college -students, such low overlapping is surprising. It does not lend -credence to the belief that socio-economic factors are responsible -for the Negro-white differences in psychological test performance.” - -4. A study of white and Negro kindergarten children in Minneapolis, -1944, done by F. Brown. The test scores found a 31 per cent -overlapping. (At very early ages, overlap always is greater because -tests deal more with performance and with sensory-motor responses, -and less with verbal skills). - -5. A study by T. F. Rhoads and associates of white and Negro children -at the age of three. This was a very detailed study, in which each -of the subjects was clinically examined from birth until the time he -was administered a psychological test. Socio-economic factors were -reported to be generally equal for the entire group of subjects. The -overlapping amounted to 30 per cent. - -6. A study by McGurk himself of Negro and white high school seniors -in Pennsylvania and New Jersey. Again, Negroes and whites were -matched for social and economic status by pairing a white subject -with each Negro subject so that both members of a pair were identical -or equivalent for fourteen different socio-economic factors. These -students then took a test composed half of “cultural questions,” and -half of “non-cultural questions.” McGurk’s finding: “In spite of -the equivalence of socio-economic factors, 29 per cent of the Negro -subjects overlapped the average total score of the white subjects. -This is almost identical with the overlapping reported in the Alpha -and Beta tests of World War I. There is hardly any question about -the socio-economic superiority of this 1951 group of Negroes when -compared with the Negroes of World War I. Yet, relative to white -subjects, the intervening improvements in social and economic -opportunities of the Negroes had not improved their psychological -test performance at all.” - -In 1953, Dr. McGurk published an additional study in the _Journal of -Abnormal and Social Psychology_, “On White and Negro Test Performance -and Socio-Economic Factors.” Here he reclassified the subjects of his -1951 study, in order to compare the 25 per cent of each race who -might be regarded as a “high group” and as a “low group” in terms of -socio-economic factors. Rearrangement of the data made no difference. -It became apparent that socio-economic factors had not made the -two groups equally proficient in psychological tests. “The average -score of the high Negro group was very much lower than the average -score of the whites of equivalent socio-economic status. In terms of -Negro overlap, only 18 per cent of these Negro children of excellent -socio-economic background obtained test scores that equalled or -exceeded the average white score.” - -Assuming that the liberal social anthropologists are right in -what they say, that social and economic forces are of paramount -importance, McGurk comments, “There should have been no differences -between Negroes and whites in any of these comparisons. As it -actually turned out, the difference between Negroes and whites is -much greater when both groups are of high socio-economic status than -when the racial groups are of deprived socio-economic status.” - -Further analysis of McGurk’s 1951 study in terms of the “cultural -questions” and the “noncultural” questions totally disproved -the notion that cultural questions on these intelligence tests -unduly hold back the Negro in his performance. Taking the cultural -questions alone, it was found that 24 per cent of the high Negro -group overlapped the average scores of the high white group. On the -noncultural questions, where it might have been expected that the -Negroes would do better, they did worse: Barely one out of five of -the high Negro group overlapped the high white group. Comparing the -two low groups, McGurk found that the low Negro group actually had -an insignificantly higher average score than the low white group on -the cultural questions, with an overlap of about 55 per cent. On -the noncultural questions, the average of the low white group was -significantly greater than that of the low Negro group. There was an -overlap of about 29 per cent. - -McGurk has summed up his conclusions in this fashion: - - Regardless of our emotional attachment to the school desegregation - problem, certain facts must be faced. First, as far as - psychological test performance is a measure of capacity for - education, Negroes as a group do not possess as much of it as - whites as a group. This has been demonstrated over and over. - - Next, we must realize that, since 1918, the vast improvements in - the social and economic status of the Negro have not changed his - relationship to the whites regarding capacity for education. This - is not to say that this relationship cannot be changed; it says - merely that it has not been changed.... - - Thirdly, as far as our knowledge of the problem goes, the - improvements in the social and economic opportunities have only - increased the differences between Negroes and whites. This - is because such improvements have been given to both racial - groups--not only to the Negro--and the whites have profited the - more from them. This serves to emphasize the former statement - that a fruitful approach to racial equality cannot follow the - lines of social and economic manipulation. There is something more - important, more basic, to the race problem than differences in - external opportunity. - -Dr. McGurk’s conclusions, it should be said in fairness (even in -this partisan brief), have been widely denounced by his equalitarian -colleagues. Following publication of his 1956 statement in _U. S. -News & World Report_, eighteen social scientists united in a rebuttal -assertion that “given similar degrees of cultural opportunity -to realize their potentialities, the average achievement of the -members of each ethnic group is about the same.” And in the Spring -1958, issue of _Harvard Educational Review_, William M. McCord, an -assistant professor of sociology at Stanford University, and Nicholas -J. Demerath, III, of Harvard, a senior student, returned to the -attack on McGurk. - -In my own view, the rejoinders of McCord and Demerath are remarkably -feeble. The investigations they cite, in an effort to refute McGurk’s -conclusions, provide no refutation at all. Their own study of -“predelinquent” and normal boys in Cambridge-Somerville, Mass., is -so affected by subjective evaluations that it contributes little -to an objective appraisal of conditions that confront school -administrators elsewhere. (They attempted to establish a correlation -between the boys’ intelligence and their social class, parental -education, “home atmosphere,” and “personality of the boys’ fathers”; -other factors dealt with the subjects’ homes--cohesive, quarrelsome, -quarrelsome-neglecting, or broken--and whether the boys’ fathers were -loving, passive, cruel, neglecting, or absent.) In any event, most of -their elaborately tabulated findings tend merely to support McGurk’s -own conclusion that at the lowest social levels, white and Negro test -scores are not significantly different. - -The evidence put together by Shuey and McGurk is solid, -dispassionate, unbiased, overwhelming; it cannot be disregarded--not, -that is, if one wishes to gain any real understanding of the problems -that confront local school boards over much of the South. To pull -the general figures down to a single, specific case study, consider -the findings of some tests administered in Dallas in 1954-55. There -more than 1600 Negro pupils and almost 5700 white pupils were tested -in the first grade on their general readiness for learning--on -their ability to pay attention, follow directions, handle crayons -and pencils, understand and use language, and so on. These were the -findings: - - ----------------------------------------------------------------- - _Number of _Per cent _Number of _Per cent - Negro Negro White White - Children_ Children_ _Category_ Children_ Children_ - ----------------------------------------------------------------- - 15 .92 Superior 576 10.14 - 105 6.47 High Normal 1,503 26.50 - 299 18.43 Average 1,814 31.96 - 677 41.71 Low Normal 1,391 24.50 - 527 32.47 Poor Risk 392 6.90 - ----------------------------------------------------------------- - -In sum, 37 per cent of the white first-graders scored in the “high -normal” and “superior” groups, against only 7 per cent of the Negro -first-graders. At the other end of the scale, 31 per cent of the -white pupils scored in the “low normal” and “poor risk” groups, -against 74 per cent of the Negro pupils. - -For another specific example, consider the findings in Virginia -among pupils of an older age group. Over a period of five successive -years, between 1949-50 and 1953-54, the State Department of Education -administered the Iowa Silent Reading Test to all eighth-graders in -the Virginia public school system. This is a standardized achievement -test in reading, employed by school systems throughout the country -to discover certain facts of immediate, practical importance to -classroom teachers: How well do the children read? How well do they -understand? The tests in Virginia were given in May of each year, -when all of the children had a grade placement of 8.8 (eighth year, -eighth month). Scores on the Iowa test are calibrated to match -the grade placement, so that a pupil who scores a reading-grade -equivalent of 8.7 would be one month retarded in achievement, and a -pupil who scores a reading-grade equivalent of 8.9 would be one month -advanced in achievement. - -This is what the Virginia tests found in May 1954, the month of the -_Brown_ decision (findings were not significantly different in the -four preceding years): The median white child in the county schools -was about half a year behind the achievement level he should have -reached; he was reading at a level of 8.3 (eighth grade, third -month). But the median Negro child in the county schools was reading -at a level of 6.2 (sixth grade, second month). The top one-fourth of -the white children (75th percentile) were reading at a level of the -tenth grade, third month, or better; but the top one-fourth of the -Negro children were not even at the 8.8 level--the 75th percentile -among the Negro pupils was found at 7.5. - -Scores on the Virginia tests were higher in the city schools, but -among the Negro pupils, not much higher. In the cities, the median -white eighth-grader was found to be reading at a level of the ninth -grade, second month; the median Negro eighth-grader scored 6.5. In -less statistical language, this means simply that in terms of reading -skills, which are the foundation of all other academic skills, -Virginia’s white eighth-graders as a group were found in 1954 to -be from two years to nearly three full years ahead of the Negro -eighth-graders as a group. Subsequent tests, administered on a more -limited scale since 1954, have shown no material change. - -Now, how is one to organize a viable public school--a completely -desegregated school--under such conditions as these? If one is -the superintendent of schools in the District of Columbia, one -can cope with what Dr. Carl F. Hansen has described as “the -enormous educational problem of upgrading large numbers of -educationally handicapped children” by a variety of devices: Squads -of psychiatrists, platoons of remedial-reading instructors, a -“four-track” system, and the like. And if one spends enough money, -and has enough pupils and buildings to permit some shuffling around -among schools, and pays salaries high enough to keep some of the most -competent teachers in the country, one can accomplish a good deal. -But how many rural counties in the South, where the _total_ school -population may number only 2000 or 2500, can possibly apply the -drastic remedies found necessary in Washington? - -Consider the schools of Washington, D. C. The capital is the -showcase of the nation in terms of desegregation. If genuinely -“mixed” schools are to work anywhere, they should work best in the -District of Columbia, where every factor combines to produce the -most favorable opportunity: The political climate of a Federal -administration anxious to achieve integration, the immense resources -of a lavish school budget, the cultural amenities freely available -to all children as an adjunct to learning, the absence of racial -discrimination in employment, the untypically high incomes and job -status of many Negro families. It is entirely reasonable to assume -that pupils in the Washington schools, as a group, should not be -merely average, or slightly above average; they should in fact lead -the entire country. Moreover, it seems a fair assumption that the -exodus of white families from the District has tended to leave behind -those white children who in general are less able mentally and more -nearly on the Negro’s cultural level. If Negro pupils are to show -up well anywhere, they should show up well here. The facts indicate -nothing of the kind. - -The District of Columbia desegregated its schools in September -1954, following the Supreme Court’s opinion the preceding May. In -October 1955, after a year of experience with desegregation, the -Stanford Advanced Reading and Arithmetic Tests were given to some -4600 eighth-grade pupils in the Washington public schools--1600 white -pupils and 3000 Negro pupils. The findings in Washington almost -exactly paralleled the findings in Virginia: Two-thirds of the Negro -children were found to be reading at the sixth-grade level _or below_ -(21 per cent of the Negro eighth-graders, indeed, were reading at the -fifth-grade level, and 22 per cent were reading at the fourth-grade -level). Only 12 per cent of the white eighth-graders were at the -sixth-grade level or below, and 54 per cent of the white pupils were -at the tenth-grade level or above. - -Shocked officials of the District of Columbia plunged headlong into -remedial programs. Their herculean labors have been reported widely -and sympathetically. At once, the four-track system was devised, and -pupils systematically were assigned to (1) an honors program, (2) a -general college-preparatory program, (3) a program for pupils not -planning to go to college, and (4) a remedial basic curriculum for -slow-learning pupils. One effect was to achieve a very substantial -resegregation, for the great bulk of those on tracks 1 and 2 turned -out to be white pupils, and the great bulk of those on tracks 3 and 4 -turned out to be Negro pupils. The resegregation process was helped -along materially by Washington’s younger white families, who fled the -District by the thousands. In 1950, Washington’s schools were almost -evenly balanced, 50-50, in white and colored enrollment; ten years -later, white pupils constituted 20 per cent, Negro pupils 80 per -cent, of the enrollment. Remedial classes for slow learners, in which -teaching specialists work with groups averaging no more than eighteen -per class, have been swiftly stepped up; there were seventy-four -such classes in 1954; the number grew to 225 in the 1959-60 session. -The reading-clinic staff increased from twelve to thirty-two in that -period of time, and a special Division of Pupil Appraisal more than -doubled with the addition of a dozen school psychologists, clinical -psychologists, and psychiatric social workers. New batteries of -achievement tests were administered every year. - -At the close of the school year in 1959, five full years after racial -discrimination had been obliterated from the Washington schools, -Dr. Hansen released some figures on how things were going. To the -integrationist Washington _Post_, reporting happily on the data, -things were going marvelously well: “District pupils’ performance on -standardized tests this year topped last year’s scores in 15 of the -27 subjects tested, School Superintendent Carl F. Hansen reported -yesterday.” The cheery tone of the _Post’s_ story was somewhat -belied by the glum figures themselves. Washington’s sixth-graders -had managed to achieve median scores in spelling, language, and -arithmetical computation exactly matching--no more--the national -norms for these three sixth-grade tests. Medians on the other -twenty-four tests were below national norms, in some instances by as -much as a full year. Ninth-graders who should have scored a median of -9.4 (ninth year, fourth month) in computation and paragraph meaning -scored 8.3 and 8.4 respectively. Dr. Hansen’s report on tests at the -third-grade and fifth-grade levels has special interest: - - _National _District Median Scores_ - _Grade_ _Subject_ Norm_ _55-56_ _56-57_ _57-58_ _58-59_ - 3 Paragraph meaning 3.5 2.3 2.5 2.9 3.1 - 3 Word meaning 3.5 2.5 2.6 3.1 3.1 - 3 Spelling 3.5 2.5 3.0 3.1 3.2 - 3 Arith. reasoning 3.5 2.4 2.8 2.8 3.2 - 3 Arith. computation 3.5 2.6 2.7 2.9 3.2 - 5 Paragraph meaning 5.1 3.8 4.1 4.3 4.2 - 5 Word meaning 5.1 4.1 4.5 4.6 4.4 - 5 Language 5.1 4.2 4.5 4.6 4.4 - 5 Spelling 5.1 4.2 4.3 4.8 4.5 - 5 Arith. reasoning 5.1 4.2 4.5 4.6 4.5 - 5 Arith. computation 5.1 3.9 4.1 4.6 4.1 - -It should not escape notice that the Washington children whose median -scores are shown in the foregoing table never had known a day of -legally segregated schooling. The Negro pupils here tested never had -suffered the school discrimination likely to affect their hearts and -minds in a fashion never to be undone. These pupils, on the contrary, -had had the benefit of all the special attention that could be given -them by a school administration frantically eager to demonstrate -the glories of integration. No resource of guidance and special -teaching, no visual aid or teaching technique had been denied them. -Yet there are the scores: Not a single test in Washington’s third -and fifth grades produced a median equal to the national norm. The -fifth-graders, backsliding, did not even equal fifth-grade scores the -preceding year. - -It is perhaps needless to dwell further upon the findings of -intelligence and achievement tests beyond commenting briefly upon -some of the flimsy efforts the equalitarians make to discredit -them. One objection is that the Negro child has no “motivation” to -do well on them; but at the younger age levels especially, this is -pure conjecture. It also is complained that frequently the tests -are administered to Negro children by white examiners, and that an -essential rapport thereby is denied them; but this was not true of -the tests in Washington, and it has not been true of many other -investigations. The most frequent objection is that tests tend to -compare white and colored children of unequal social and economic -background; but abundant evidence is available of investigations in -which subjects have been “paired” by every imaginable criterion, -and almost without exception these tests show the same lamentable -contrasts in white and Negro scores. - -Otto Klineberg has attempted to dismiss all the findings: “Until -and unless the _same_ education is given to both races, comparisons -will be unfair.” But it manifestly is impossible to give the _same_ -education to any two groups. All that one can do is to provide the -same textbooks, the same teaching aids, teachers with the same degree -of education, and physical facilities generally comparable--but even -then, identity of total educational opportunity could not possibly -be achieved. The various tests now being administered in school -systems across the country are as fair and objective as competent -psychologists and educators can make them; and the bleak, undeniable -fact, confirmed repeatedly in school districts both North and South, -is that colored children regularly score at lower levels than the -white children of their communities. Thoughtful students of the -difficult problem before the South will comprehend what the evidence -means in terms of the real and practical obstacles to welding -together white and Negro schools in rural areas below the Potomac. - -Other very real difficulties merit reflection also. The disputations -of social scientists cannot be considered in a vacuum, nor the -findings of achievement tests treated as so many punched cards for -an IBM machine. These are _children_ we are concerned with, white -and Negro alike, and the fact is (I do not argue the goodness or -badness of the fact; I merely cite its existence) that white and -Negro children in the South have many quite different educational -requirements. The essentially dual and separate society of the South -cannot be dissolved overnight by court decree. For years to come in -the South, the practice of law and medicine, the handling of banking -and finance, the sale of stocks and bonds, the management of large -retail and wholesale enterprises, and the administration of commerce -and government will continue to be overwhelmingly restricted to white -persons. This is not to say that many able Negroes are not engaged -in these fields now; they are, and their number is increasing, but -they are conspicuous exceptions. In rural areas especially, where -professional and business opportunities naturally are severely -limited, the realities of adult opportunity are even more striking. - -All this has to be considered practically in terms of curriculum -planning, guidance, teaching emphasis, and the like. Nothing very -significant is accomplished, really, in offering physics or calculus -to rural Negro boys who intend to drop out at the ninth-grade -level and go to work farming or cutting pulpwood. Negro girls who -realistically expect to find employment in a tobacco stemmery, -a laundry, a bakery, or in domestic service have educational -requirements materially different from those of their white -counterparts. The impatient theoretician, unwilling even to attempt -to understand a social order he so thoroughly disapproves, doubtless -will be repelled by this line of reasoning. But the reasoning has a -way of making sense in rural county seats. - -A point is made of the exceptional Negro students. What of them? -Why should a brilliant and ambitious colored youngster be held -back by the relative ineptitude of his typical colored classmates? -My answer is that he should not be held back, and I believe that -in the course of time, this will be the answer of the South as a -whole. When colored students appear who demonstrate the intellectual -ability to compete at top levels with their white counterparts, I am -wholly agreeable to any plan that would bring them, by transfer, to -the finest high schools for miles around. Virginia has just such a -program slowly formulating in its plan of “Freedom of Choice.” But I -would suggest that one consequence of such transfers of exceptional -children, in the foreseeable future, would be to deny the slower -Negro pupils the example and stimulation of superior students -of their own race. The tendency would be further to reduce the -achievement levels of the colored schools as such. But I would leave -such decisions to the pupils and their parents themselves. - -I have attempted to set forth two practical objections to school -desegregation in the South, and especially in the rural South--first, -the demonstrably lower levels of aptitude and achievement on the -Negro’s part, and second, the demonstrably different opportunities -and occupations for which most colored pupils realistically must -prepare themselves. A third difficulty involves the teaching staffs. -The massive desegregation of Southern schools predictably would have -a catastrophic effect upon the thousands of Negro men and women who -now enjoy, within their race, relatively high status and relatively -good incomes as public school teachers. In many areas of the South, -as I have said, attitudes are changing and softening, as white -parents discover there is a level of token desegregation that is not -intolerable to them. This tendency, I feel certain, will increase -year by year. But I cannot yet foresee the day, in the greatest part -of the South, when white parents by and large will accept Negro -teachers and Negro principals over their children. This would demand -one more subtle and unwelcome shifting of gears; it would carry -the social revolution beyond the point of an uneasy “equality” of -pupils in a classroom, and would make the white child subject to -Negro masters. The efforts of a Federal court to compel employment -of Negro teachers who would preside over heavily “mixed” classrooms -would be bitterly resented, and the resentment would manifest itself -in wholesale withdrawals and school abandonments. I venture the -flat prediction, on the basis of personal conversations with white -families who have moved out of Washington, that this difficulty -would be seen as a last-straw condition. But the alternative to the -employment of Negro teachers in massively desegregated schools is to -discharge the Negro teachers and to replace them with white teachers. -This would be cruelly unfair; but in any unhappy election between -preserving the jobs of some Negro schoolteachers and preserving a -local school system itself (which involves preservation of the good -will of white parents and taxpayers), the jobs will go. - -This line of discussion brings us to a fourth practical difficulty -that would accompany massive desegregation in the South: the -predictable difficulty in employing _white_ teachers for racially -mixed classrooms. New York, Philadelphia, and Washington have run -into this constantly. Dr. Hansen has disclosed in the _Teachers’ -College Record_ (October 1960) that Washington’s school system -employed 579 temporary teachers in 1954-55. By 1959-60, this number -had grown to 1250. “It is difficult,” he concedes, “to find white -teachers psychologically prepared to take jobs in predominantly Negro -schools, with the result that the source of applicants tends to -become more and more restricted.” And if Washington has this problem, -with the high salaries and fringe benefits and physical facilities -and cultural amenities it can offer a prospective teacher, what may -we reasonably expect at the branch-heads? - -One of the problems in this area, acknowledged even by Otto -Klineberg, is the language barrier that so often baffles a white -teacher in attempting to communicate effectively with a Negro child. -“Obviously the Southern Negro speaks English,” says Klineberg in -_Characteristics of the American Negro_, “but equally obviously, his -English is not similar to, or the equal of, the English spoken by -the average white.” Many other observers have made the same point. -The Negro inflection, pronunciation, word-choice, and accent are -quite different; and in the case of the South Carolina gullah, these -characteristics make speech almost incomprehensible. White teachers, -with jobs widely available to them, simply would rather not get -involved in this. - -These teachers have other objections, too. As the record of hearings -before a House subcommittee in 1956 makes vividly clear, many white -teachers are simply appalled by the sexual mores and the violent -attitudes of some of the Negro pupils in desegregated schools. One -witness after another appeared before the committee to testify -to the inordinate amount of time that had to be spent simply in -maintaining discipline. Adolescent sex urges, volatile enough under -any circumstances, are further complicated by the novelties and -tensions of intimate interracial association in halls and classrooms -and toilets. Philadelphians still recall grimly the incident at Shaw -Junior High School in 1956, when a Negro gang gathered outside the -school to insult and annoy pupils as they left the building. Three -teachers who came out to remonstrate were attacked and severely -beaten. The white principal of another Philadelphia school, who had -watched the deterioration of his school from an “honors” institution -of high scholarship into a second-rate vocational factory, was quoted -in _U. S. News_ in 1958: “Many of these youngsters are not adequately -motivated for learning. They have no home to speak of, nothing to -encourage them once they leave the school grounds. They’re here -simply to occupy their time until they’re old enough to go out and -get a job--if they can find a job.” - -These are among the arguments of practicality the Southerner would -advance against compulsory desegregation of his public schools. He -is not prepared to chop logic, or to engage in casuistic debate on -the why of the world that he lives in. He knows that with the best -will in the world--and in his fashion, he more often than not has -great good will for the Negroes of his community--he cannot quickly -elevate the Negro’s home environment appreciably. Overnight he cannot -put books and magazines in Negro living rooms; he cannot inject -generations of cultural background with some magic hypodermic needle; -he cannot deliver to the Negro, as he would loan him a hoe or give -him an overcoat, the social graces, the community of experience, the -heritage of generations, the accumulation of business, professional, -and civic understanding that necessarily must figure in the educative -process. Time presses, and the school bell rings, and on April -mornings the honk of the school bus, like the voice of the turtle, -is abroad in the land. He has to do what he conceives to be best for -his child _now_, to prepare that child for the society he predictably -will live in tomorrow. And he does not accept the idea that racially -mixed classrooms, over a long period of years, in the context of -the only society he knows, will provide a workable, desirable, or -pleasant experience for sons and daughters who are dear to him. -Maybe, he says doubtfully, maybe some time in the future.... - - -IX - -If there ever is to be in the South any significant degree of -desegregation in public institutions, let alone any significant -degree of integration in society as a whole, it can come effectively -in one way only: slowly, cautiously, voluntarily, “some time in -the future.” This is the doctrine of “gradualism,” and the Negro’s -professional leaders despise it. They insist, with some plausibility, -that constitutional rights are personal and immediate rights, capable -of being lost irretrievably if they are not exercised at once; and -now that new constitutional rights have been created and defined, -they ask, why is the realization of these rights coming so slowly? -“How long do you expect us to wait?” they demand. “It is almost a -hundred years since slavery now.” They do not want to be gradual; -they want to be integrated. - -To these impatient appeals, the South makes a number of responses, -none of them pleasing to the militant Negro leadership. But the -responses make sense nonetheless. The answers add up to this: The -Negro is plunging forward now in a movement that is at once both -revolutionary and evolutionary. All of man’s history suggests that -while revolutionary changes may be hurried and pushed along by -processes of forced growth, the changes that result from evolution -can never be hurried at all. They will come at their own speed, and -their own speed is glacial. - -In many areas, the revolution proceeds apace. William G. Carleton, -of the University of Florida at Gainesville, acknowledges “great -strides” by the Southern Negro since World War II. In 1944, Negroes -were virtually barred from participation in Southern politics. In -1960, when he reported in the _Teachers’ College Record_ that Negro -rights were making haste slowly, 1,100,000 Negroes were registered -to vote in Southern primaries and general elections. The number is -considerably higher in 1962, and the United States Civil Rights -Commission has conceded that except in a relatively few Black Belt -localities in Louisiana, Alabama, Mississippi, and Georgia, Negroes -now are not prevented from registering or voting over most of the -South. In most areas, it is no longer the intimidation of the white -man, but far more often the indolence, indifference, and incapacity -of the Negro himself that keeps him from the polls. In some Southern -States, Negro registration has climbed to 35 or 40 per cent of the -adult Negro population; white registration, in many communities, is -seldom much more than half or two-thirds of the adult population. In -Florida, Negro registration increased from 8000 in 1944 to 160,000 -in 1960. North Carolina and Virginia have witnessed gains almost -as notable. To Carleton, a “veritable revolution” is seen in the -South: “Had the mass of Southerners in 1950 been told that by 1960 -there would be considerable token desegregation in the schools of -Virginia, Tennessee, North Carolina, Arkansas, and Texas; even more -desegregation on city bus lines; and that segregation at lunch -counters and eating places would be here and there giving way in the -South, they would have refused flatly to believe it. From the point -of view of social justice, the changes have been painfully slow -and spotty; but from the point of view of white Southern cultural -attitudes, the changes have been unbelievably swift.” - -Note that the unbelievable changes of which Carleton speaks are -changes from “segregation” to “desegregation,” in his own careful -choice of nouns, and not changes from “segregation” to “integration.” -It takes no great powers of prophecy to envision a great many other -such changes, as the South cautiously explores the possibilities -of retaining its segregation while abandoning it too. I write in -a period of transition. Ten years hence, in 1972, the perfect -clarity of hindsight will perceive much that is now obscure; but my -impression is that some sort of peak has been reached by the white -South with the crisis over the parks of Birmingham. In the winter of -1961-62, a decision was reached by officials to close the Birmingham -parks rather than to accept a policy of permitting their joint use by -the two races, but the decision brought the first audible rumblings -of misgiving and disagreement in a city that previously had been -united in opposition to the slightest retreat from policies of total -municipal segregation. A great many persons in Birmingham, sincerely -convinced of the wisdom of essential racial separation, also were -sincerely convinced of the desirability of retaining the parks on -a functioning basis. They were aware that other Southern cities of -comparable urbanity and custom had adjusted to a system of open -parks. They did not like the idea of a parkless city; and they began -actively to think about all this. - -To the devout believers in racial integration, it doubtless appears -incredible that Birmingham’s action could have been taken in the -first place, or that the wrongness of this decision (in their eyes) -should fail to be instantly apparent. These impatient critics simply -do not comprehend the depth of Southern feelings; they are as totally -unable to accept the viewpoint of the typical white Southerner as the -typical white Southerner is totally unable to accept the viewpoint -of the Negro. In the course of time, each of these conflicting -viewpoints will be seen more clearly; and once seen, may be -understood and dealt with. But the process demands time, time, and -more time. The death of racial segregation, which the integrationists -see as a necessary end, will follow Caesar’s prescription: It will -come when it will come. - -To any objective observer, it should be manifest that such a time -is not yet--not in the early 1960s. In one city after another, -North as well as South, the plain and palpable fact is that where -“integration” is pushed too rapidly--more rapidly, that is, than the -Negro community is prepared to sustain it or the white community -is prepared to accept it--a reverse action has set in. The District -of Columbia offers a textbook example: Its public schools passed -in eight years from segregation to desegregation to a virtual -resegregation, as white families fled from mixed neighborhoods and -mixed schools. St. Louis has acknowledged the same experience: -William A. Kottmeyer, deputy superintendent of instruction in St. -Louis, told the National Conference of Editorial Writers in October -1961 that St. Louis then had more actual segregation in its schools -than had existed prior to the _Brown_ decision. Of 130 elementary -schools in St. Louis at the time, only 36 were classified as mixed; -46 were all white, and 48 all Negro. Nowhere in the South has school -desegregation been attempted under more favorable auspices than in -Louisville, yet in 1961-62 the trend back toward resegregation was -appearing there, too. Between 1950 and 1960, Baltimore experienced a -net out-migration of 175,000 white persons, and a net in-migration of -41,000 nonwhite persons. Dr. Houston R. Jackson, a Negro assistant -superintendent of Baltimore schools, said in the summer of 1961 that -Baltimore had more all-Negro schools at that time than it had before -desegregation began in the fall of 1954: “When the Negroes in a -school reach 50 per cent,” he added, “that’s when the white teachers -begin to ask for transfers.” And to judge from accounts of school -litigation in such Northern localities as New Rochelle, N. Y., and -Englewood, N. J., the antipathy of white persons to intimate and -personal relationships with Negro persons is not a wholly Southern -phenomenon. One satirical lexicographer, observing conditions in -Chicago, has defined integration as “the period which elapses between -the arrival of the first Negro and the departure of the last white.” -Manifestly, the resistance to a coerced racial “equality” is wide and -deep. - -Why is this so? The answer, in blunt speech, is that the Negro -race, as a race, has not earned equality. And as I have attempted -to argue earlier, it is a feeble and evasive response to accuse the -white critic, in making that flat statement, of emulating the child -who shot his parents and then pleaded for mercy as an orphan. The -failure of the Negro race, as a race, to achieve equality cannot be -blamed wholly on white oppression. This is the excuse, the crutch, -the piteous and finally pathetic defense of Negrophiles unable or -unwilling to face reality. In other times and other places, sturdy, -creative, and self-reliant minorities have carved out their own -destiny; they have _compelled_ acceptance on their own merit; they -have demonstrated those qualities of leadership and resourcefulness -and disciplined ambition that in the end cannot ever be denied. But -the Negro race, as a race, has done none of this. “We do not _want_ -to be second-class citizens,” cries James Farmer, national director -of the Congress for Racial Equality. But “wanting” is not enough. It -is a beginning; but it is no more than a beginning. - -How is the Negro race, as a race, to earn the respect of the white -race as a race? I should imagine that a cultivation of self-respect -would offer an excellent starting place; and I do not see much of -this now. With a few notable exceptions, most Negro spokesmen appear -to spend their time condoning and minimizing the characteristics -that deprive their race of a “first-class” reputation. Are Negro -neighborhoods filthy? The Negro, it is said, has no incentive to -clean them up. Why does this appalling rate of illegitimacy persist? -The Negro, it is said, must relieve the frustrations brought on by -segregation. Are Negro incomes generally low? It is all the fault of -the white man: He deprives the Negro of job opportunities. - -After so long a time, these repeated alibis grow stale. I have an -idea that some Negro defenders themselves have ceased to believe -in them. And I cherish the further idea that a really massive, -significant change in race relations will not come until the Negro -people develop leaders who will ask themselves the familiar question, -“Why are we treated as second-class citizens?” and return a candid -answer to it: “Because all too often that is what we are.” - -If the Negro people have the innate capacity that Montagu, Clark, -Comas, Boas and the others insist they have, the Negro people in time -will overcome every obstacle that fate has put in their way. On their -own initiative, as a product of their own industry and skill, they -will develop the talents that command respect in the market place. -They will provide their own capital, build their own enterprises, -sell their own wares, compete among themselves until they have -learned to compete in the whole wide world. They will exert, within -their own community, the moral leadership necessary to reduce crime -and illegitimacy. By participation first in their own constructive -public affairs they will prove themselves capable of contributing -actively to the civic, social, and economic life of their counties, -towns, and cities. They will stop trying simply to imitate the white -man; they will discover themselves first, and if this inner self is -all that the liberal anthropologists assert it to be, the discovery -should lead to wondrous exploitation. _Ebony_ magazine made this -same point editorially in 1959, when it urged its readers to stop -complaining about being referred to as “Negro” or as “colored”: “The -real problem is the man called Negro. If he would spend as much time -dignifying his race as he does decrying its designation, if he would -quit worrying about the label and concentrate upon improving the -product, the stuff inside, the name would take care of itself.” - -This was sound advice, and one of the hopeful aspects of the South -in the early 1960s (there are not many) is that a new generation of -young Negroes may even act upon it. Carleton remarks in his essay -upon the increasing nationalization of the Southern Negro, who now, -more often than not, has some Northern connections; and he says this: - -“Not only has the Southern Negro been nationalized, he has also -developed his own propertied and business classes, his own wealthy -and middle classes. Every Southern city of any size has a group of -economically comfortable and relatively independent lawyers, doctors, -teachers, morticians, contractors, insurance agents, and owners of -small businesses--garages and filling stations, restaurants, taverns, -barber shops, beauty parlors, stores, and so forth. These people have -education or considerable economic independence, or both.” - -In my own observation, this is quite true; the notable fact, as yet -unrecognized by many staunch Southern segregationists, is that a new -Negro is in fact emerging--the bright young high school senior, the -serious college student, the impatient middle-class Negro couple, -struggling for respectability and status. Their impact is yet to be -wholly felt within their own race, but it is being felt increasingly -upon white institutions; and as a consequence, as Carleton observes, -racial attitudes among white persons in certain parts of the South -_are_ subtly changing. He terms this a “softening.” It is sometimes a -hardening, too, as white families, having long cherished an affection -for “their” Negroes, discover that their charges prefer not to be -known as Uncle Toms or Aunt Jemimas; the disillusioned reaction, out -of chagrin and embarrassment, is to let them bail themselves out of -trouble, if that’s the way they want it. The relationship changes. -But if the Southern Negro is to find salvation at all, he must find -it in this trend to independence and maturity. “The most important -immediate force at work to emancipate the Negro of the South,” says -Carleton, “is the Southern Negro himself. A great change has come -over him. He is no longer an Uncle Tom, or even the kind of Negro -approved of by Booker T. Washington. He now talks back. He has a new -self-respect, a new confidence, a new independence. Increasingly -he is depending less on Northern Negro initiative and leadership -and is supplying his own.” To the extent that this prophecy is -fulfilled--for all the bitter incidents, severances, and failures -that may be expected--the upward and forward motion of the Negro will -be recorded. - -“The fault is not in our stars, but in ourselves, that we are -underlings.” The brooding, introspective advice of Cassius ought not -to be spurned; it ought rather to be put to thoughtful use by those -genuinely (as distinguished from merely politically) concerned with -the Negroes’ movement out of an underling’s status. James B. Conant -has recognized this, however belatedly, in his _Slums and Suburbs_. -Here Dr. Conant paints a grimly realistic picture of a Negro child’s -life in the urban slums of the North, where the child may live six -flights up in a tenement offering “one filthy room with a bed, a -light bulb, and a stink.” It is after visiting such tenements, and -inspecting the schools attended by slum children, that he grows -impatient “with both critics and defenders of public education who -ignore the realities of school situations to engage in fruitless -debate about educational philosophy, purposes, and the like: These -situations call for action, not for hair-splitting arguments.” - -Dr. Conant is a distinguished spokesman for liberalism, but unlike -most of his fastidious brethren, he came to the slums, and smelled -them, and began to see realities fair and clear. What he has to say -about Negro education merits a sober hearing. He is convinced that -it is wrong to insist upon a curriculum completely unsuited to the -needs of the children required to take it: “Foreign languages in -Grade 7 or algebra in Grade 8 ... have little place in a school in -which half the pupils in that grade read at the fourth-grade level -or below. Homework has little relevance in a situation where home is -a filthy, noisy tenement.” By the same token, it may be suggested -that in the rural South, school offerings ought to be adapted to real -life also; and though Dr. Conant is a staunch opponent of school -segregation as such--that is, to the assignment of pupils to schools -solely by reason of their race--he sees no reason why satisfactory -education cannot be provided in all Negro schools. Arbitrarily to -shift children around, simply to satisfy sociological theories of -an ideal race-mixture, impressed Dr. Conant as wrong. This approach -treats children “as though they were pawns on a chessboard.” - -But these children, white and black, are not mere pawns on -a chessboard, and whatever the sins or submissions of their -great-grandfathers may have been, they merit consideration in their -own right. In the South, this consideration steadily is being -extended. If we of the South cannot turn the clock back to 1868, -when the Fourteenth Amendment was ratified, at least we can strive -to turn the clock back to 1896, when the doctrine of separate but -equal school facilities received a sort of casual endorsement from -a Supreme Court concerned primarily with a question of public -transportation. True, the apostles of the Brave New World will -denounce the idea of applying the constitutional principles of 1896 -to problems of the early 1960s, but there have been entirely too many -such denunciations from thoughtless and ill-informed pedagogues. -The Negro (precisely as the white) is entitled, so far as a system -of education is concerned, to the same educational opportunities -afforded his white counterpart, and neither more nor less. What he -does with these educational opportunities thereafter is his question -to answer. - -I do not profess to know what the future holds for the Southern -Negro, or for that matter, for the Northern Negro. The achievements -of the colored people of the 1950s merit at least provisional -applause: They are fighting their way out of millennial shadows--and -more power to them! If an arriving generation of Negro children can -sustain this momentum, the race should move ahead, first within -itself, as Dr. Conant pleads, and in time--_in time_--toward equality -with the larger and more established community around it. When -that hour of equality arrives--whenever that hour arrives--white -“prejudices” predictably will dissolve; there no longer would be a -basis for them. What comes thereafter I cannot suggest, but it is -reasonable to surmise that barriers once lowered will not thereafter -be raised capriciously again. When the Negro race proves itself, in -terms of Western values of maturity and achievement, it will be time -enough to talk of complete social and economic integration. Until -then, it is pointless to argue sociology; it is more useful, in every -way, to meditate upon the transcendent issues of the law. - - - - -Part II - - The Law - - I think the proper course is to recognize that a State legislature - can do whatever it sees fit to do unless it is restrained by some - express prohibition in the Constitution of the United States or of - the State, and that courts should be careful not to extend such - prohibitions beyond their obvious meaning by reading into them - conceptions of public policy that the particular court may happen - to entertain. - - --Oliver Wendell Holmes. - - -I - -On May 17, 1954, the Supreme Court of the United States handed down -its unanimous decision in the _School Segregation Cases_. By general -agreement, this decision is regarded as the court’s most momentous -opinion of this century; indeed, only the court’s opinion of 1856 in -the _Dred Scott_ case is thought to have had greater impact upon the -American people or upon the course of historic events. Because of -its destructive effect upon the stability of law and the permanence -of long-established institutions, the school decision, in my own -view, surpassed _Scott_ v. _Sanford_ in the area of jurisprudence -gone mad. In one stroke, the Warren court violated those precepts of -judicial restraint and constitutional interpretation which it most -frequently has insisted on in the past; it transformed itself into a -super-legislature--more, it usurped the functions of constitutional -amendment that lie with not fewer than three-fourths of the States. -Abandoning law, the court wedded sociology; discarding eighty years -of unbroken precedent, members of the court substituted their own -notions of psychology and moral fitness for the plain and palpable -meaning of the Fourteenth Amendment in terms of racially separate -public schools. And having prohibited unto the States the exercise -of a power the States had been exercising with judicial approval -since 1868, the court capped its day’s work by decreeing an end to -segregation in schools of the District of Columbia. This latter -stroke was achieved by judicial _coup de main_ that left even the -court’s best friends embarrassed; what happened, Ralph Catterall has -remarked, is that the court declared “unthinkable” that which had -been universally thought for 166 years. - -This is the indictment the South brings against the Warren court -for _Brown_ v. _Board of Education_ and the subsequent judicial -progeny of that May afternoon. In one sense, it doubtless is -futile to reargue _Brown_; as the court defiantly indicated by -its unprecedented action in signing every judge’s name in 1958 to -_Cooper_ v. _Aaron_, the principles it boldly put forward in 1954 are -not to be reconsidered so long as the court’s present members may -live. But it is important, nonetheless, that the South’s protest be -understood and regularly renewed, lest it be supposed that with the -passage of time the court’s action has been condoned and forgiven. - -The South’s position rests upon a foundation of law, history, -and constitutional construction as old as the Union itself. Ours -is the ancient doctrine of State powers--not of State rights, -but of State _powers_. This principle is the _élan vital_ of the -American Republic; it takes in the whole body of governmental and -philosophical principles by which American greatness has been -achieved. The doctrine embraces that delicate balance in State -and Federal relations which keeps the whole watchworks moving; it -depends for its success upon the right of the States to be wrong--to -be foolish, to be unwise, to be out of step, to do “those acts and -things which independent States may of right do,” simply because -they are States. And unless this delicate balance is preserved, -and the rightful powers of the States guarded from continued -encroachment, the whole organism of American government will be -subtly transformed, without the expressed consent of the people -governed, from the federalism that has provided its greatest strength -to an immoderate centralism that will prove its greatest weakness. In -maintaining its case, the South is no longer fighting the question -of separate schools or even a question of race relations at all; -it is contending, rather, for the preservation of an American plan -of value to all the States and all the people. What is lost to the -Southern States, in terms of political powers, is lost to all States; -and the imposition of court-ordered prohibitions in one field makes -the next imposition that much easier. By the court’s decree of 1954, -the South’s largest, most expensive, most important, most cherished -public institutions--our public schools--were thrown into potential -jeopardy and chaos. Whose most cherished institutions will be next? - - -II - -The South’s legal position in the school controversy is essentially -a constitutional position; it cannot be fully understood without -some understanding of how the Southerner views the Constitution. He -views it through the eyes of the States. These are to him, as Oliver -Wolcott of Connecticut called them, “the pillars which uphold the -general system.” - -Most readers of this essay, it may be assumed, have a good working -knowledge of the Constitution. Some will not; they may never have -read the Constitution, line by line and word by word; they know its -provisions vaguely, not explicitly, and the trail that led from -the creation of States to the formation of a Union is as remote to -them as a path through the Pleiades. Hence this hornbook review. -And if Jefferson’s Declaration of Independence seems irrelevant to -the South’s position in _Brown_ v. _Board of Education_, it is only -because too much emphasis has been put on the Declaration’s first few -lines and not enough on its last. - -Perhaps in the divine plan, all men are indeed “created equal.” Here -on earth they patently are not. Jefferson’s opening hyperbole was -never meant to be taken literally. But he did mean for the closing -lines to be taken, at international law, for precisely what they -were--a declaration that the colonies once tied to Britain, were now -_free and independent States_-- - - and that as Free and Independent States, they have full power to - levy War, contract Alliances, establish Commerce and to do all - other Acts and Things which Independent States may of right do. - -In that moving Declaration, nothing was said of the birth of a -“nation.” In truth, nothing was said of a “nation” in the Articles of -Confederation, or in the Constitution that succeeded the Articles. -The Declaration was the act of “one People,” but the political aim -in the decade that followed the Declaration of 1776 was to form a -more perfect Union--a union of separate, sovereign States, acting -jointly for some purposes, but acting individually for others. -And the political genius of the founding architects who designed -this structure is the very genius so widely disdained by the busy -planners and amateur carpenters of our own time. - -What did the Declaration assert the function of government to be? -Why is it that governments are instituted among men? The answer, in -Jefferson’s phrase, is that governments are instituted among men to -_secure rights_--not to grant rights, which a free people have to -begin with, but only to secure rights. And where does government -derive its powers in this regard? It derives its just powers “from -the Consent of the Governed,” and from no other source. How is this -consent manifested? The answer lies in the whole of the republican -process, which in the United States is a process exercised entirely -through the actions of the people _in their States_. - -The colonists who cast off the yoke of Great Britain did not propose -to take on a fresh yoke of their own contriving in its place. The sum -of their charges against the Crown was that George III had sought to -establish “an absolute tyranny over these States.” He had “erected a -multitude of New Offices and sent hither Swarms of Officers to harass -our People and eat out their Substance.” In the formation of a new -and independent government, the founding fathers were determined to -minimize the opportunities for new tyranny to come into power. And -toward that end, they were determined that the powers of government -should be fragmented, and partitioned off, and kept securely under -leash. They feared excessive “bigness” for the best of all reasons, -that excessive bigness ought always to be feared when the liberties -of a people are at stake. They sought to provide a check here, a -balance there, a string of unequivocal prohibitions somewhere else. -They insisted always upon a reservation to the people themselves of -powers ungranted. These were the prudent goals the greatest political -minds of our country sought to achieve. - -Their first handiwork, the Articles of Confederation, is too much -denounced and too little read. “This despised government,” said -Patrick Henry, defending the Confederation, “merits, in my opinion, -the highest encomium: It carried us through a long and dangerous -war; it rendered us victorious in that bloody conflict with a -powerful nation; it has secured us a territory greater than any -European monarch possesses; and shall a government which has been -thus strong and vigorous be accused of imbecility and abandoned for -want of energy?” It is popularly supposed that when the delegates -assembled at Philadelphia in 1787, they tossed the whole of the -Articles unceremoniously aside, and set out from scratch to compose -a Constitution. They did nothing of the sort. The revisions they -made were fundamental, of course, but the principles of political -power under which the United States live today are in essence the -principles embodied in the Articles of Confederation. - -Here in the Articles are to be found many of the phrases, and indeed, -many of the specific provisions, that endure in the Constitution. -The genesis of the Tenth Amendment appears as the first substantive -clause in the compact: “Each State retains its sovereignty, freedom, -and independence, and every Power, Jurisdiction and right, which is -not by this confederation expressly delegated to the United States, -in Congress assembled.” - -Article III bound the States in a firm league of friendship “for -their common defense, the security of their Liberties, and their -mutual and general welfare”; the phrases were to reappear in the -preamble to the Constitution of 1787. Article IV guaranteed to -the inhabitants of each State “all privileges and immunities of -free citizens in the several States,” a guarantee carried over to -Article IV, Section 2. The extradition of fugitives from one State -to another, the rule of “full faith and credit” among the States, -the immunity of Congressmen, and the flat prohibition upon the -granting of titles of nobility all stem from the Articles. It often -is forgotten, but the States laid upon themselves in the Articles -of Confederation many of the prohibitions they were to accept a few -years later in the Constitution: No States were to enter into any -compact without the consent of Congress; no States were to keep -troops or ships of war in time of peace without the consent of -Congress “unless such State be actually invaded by enemies, or ... -the danger is so imminent as not to admit of delay,” a provision -echoed to this day, almost exactly, in Article I, Section 10. The -powers vested in the Congress under the Articles of Confederation -also have a familiar ring--to coin money, fix standards of weights -and measures, regulate trade, establish post offices, borrow money, -build and equip a navy, and appropriate funds “for defraying the -public expenses.” - -But the Articles of Confederation, for all the thoughtful provisions -they provided as progenitors of the Constitution, had serious and -admitted defects as well. If there was to be something more than a -“firm league of friendship” among sovereign States, a government -had to be created capable of acting upon individuals as such. The -most devoted friend of “States’ rights” willingly concedes that -the “more perfect Union” provided for in the Constitution of 1787 -created a nation, even if the Constitution described it only as -a “Union,” or as “the land.” Obviously, the supremacy clause in -Article VI was something new, not in degree, but in kind: “This -Constitution, and the laws of the United States which shall be made -in pursuance thereof; and all treaties made, or which shall be made, -under the authority of the United States, shall be the supreme law -of the land; and the judges in every State shall be bound thereby, -any thing in the Constitution or laws of any State to the contrary -notwithstanding.” - -That clause alone, coupled with Article III and with John Marshall’s -effective establishment of the principle of judicial review, created -the “one out of many” that is the American Republic. Yet the -objective student of public affairs who would understand the South’s -classic and traditional position in advocacy of States’ rights -should devote some thoughtful attention to certain aspects of the -Constitution that have remained unchanged from the very beginning -of the Union, surviving civil war and the growth of nearly two -centuries--aspects that remain unchanged to this day. - -At the risk of being tedious, it is necessary to examine the -Constitution as it is, and not as centralizers might wish it to be. -This is our organic law, the basis of our public institutions; the -spirit that lives and breathes in it is the American spirit, and the -great beams and foundation stones of this written compact support the -whole structure of our government. The few paragraphs that follow may -seem elementary. They are, in fact, essential to an appreciation of -what was wrong with _Brown_ v. _Board of Education_ in 1954. - -The preamble itself offers the first source of misunderstanding. It -begins, of course, “We the people of the United States,” and for -175 years superficial students of the Constitution have been crying -triumphantly that the opening three words prove the existence of -some national democracy: “We, the people.” The demonstrable facts -prove no such thing. On Monday, August 6, 1787, the Philadelphia -convention received its first full draft of a Constitution. The -preamble submitted by South Carolina’s John Rutledge on that day -read as follows: “We the people of the States of New Hampshire, -Massachusetts, Rhode Island and Providence Plantations, Connecticut, -New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, -North Carolina, South Carolina, and Georgia, do ordain, declare -and establish the following Constitution for the Government of -Ourselves and our Posterity.” The preamble in this form was adopted -the following day without dissent, and indeed without debate. It was -not until September 10, when the weary delegates were ready to have -the final document whipped into form by a committee on style, that -the presumptuousness of the draft preamble became apparent. James -Wilson of Pennsylvania made the point that it would be “worse than -folly to rely on the concurrence of Rhode Island.” The State of New -York, he observed, “has not been represented for a long time past -in the Convention.” North Carolina’s agreement was most uncertain. -Many individuals from other States had spoken against the plan. And -though Wilson was here addressing himself to a specific proposal that -the draft Constitution be submitted first to the Congress, rather -than directly to the States, his remarks made obvious good sense to -members of the committee on style. They prudently recast the preamble -to omit all mention of specific States--how could they know which -nine would bind themselves by ratification?--and the preamble emerged -as we know it. The point is that there was not the slightest doubt in -the minds of the delegates at Philadelphia, or in the minds of the -State conventions thereafter, that “We the people” meant, as Madison -said, “We the people of the States as thirteen sovereignties.” - -The first eight words of Article I are important: “All legislative -powers herein granted shall be vested....” We are dealing, at the -outset, as the careful choice of a noun makes clear, with _powers_, -and with a specific kind of power: _legislative_ power. These powers -are “granted _herein_,” which is to say, granted by the ratifying -States in the Constitution itself, and in no other place; and these -powers are to be “vested” (a most judicious verb) in the Congress. - -In Section 2 of Article I, the first of more than ninety references -to “the States” appears: The House of Representatives is to be -composed of members chosen every second year “by the people of -the several States.” No congressional district ever may extend -across a State line, for “the electors in each State shall have the -qualifications requisite for electors of the most numerous branch -of the State legislature.” Moreover, every Representative must be -“an inhabitant of that State in which he shall be chosen.” Then -follows the enumeration of the States to whom the Constitution would -be submitted, if they wished to enter the Union: The State of New -Hampshire shall be entitled to choose three members of the House, -Massachusetts eight, and so forth. - -Section 3 deals with composition of the Senate. A preposition is -important here: To become a Senator, a man must be an inhabitant of -that State _for_ which he shall be chosen. From the beginning, the -concept has been that Representatives represent people, or groups -of people, or districts of people; Senators speak for the larger, -mystical entity of the States themselves. - -Section 4 re-emphasizes the status and function of the States, -even as it lays down the first of the limitations upon State power -voluntarily accepted by the ratifying members of the Union: “The -times, places and manner of holding elections for Senators and -Representatives shall be prescribed in each State by the legislature -thereof: But the Congress may at any time by law make or alter such -regulations, except as to the place of choosing Senators.” - -In Section 5, the first of many limitations upon the central -government appears: Each house of the Congress must keep a journal -of its proceedings, and at the desire of one-fifth of the members -present, must record the individual yeas and nays. Close study of -the Constitution will disclose many such restrictive provisions, for -the Constitution is in many respects a negative instrument; almost -every delegation of power is followed at once by a snatching back, or -by a qualification, or by a jealous and suspicious prohibition. The -Constitution abounds in reservations, in neithers, noes, and buts. - -Section 8 defines the powers of the Congress, and characteristically -limits these powers even as it grants them: The Congress may lay and -collect taxes, “But all duties ... shall be uniform throughout the -United States”; the Congress may raise and support armies, “but no -appropriation of money to that use shall be for a longer term than -two years”; the Congress may provide for organizing and arming the -militia, “reserving to the States respectively the appointment of -the officers”; the Congress shall exercise exclusive power over the -seat of the national government, but its purchase of other places is -dependent upon “the consent of the legislature of the State in which -the same shall be.” - -In Section 9, one of the clauses appears that the Supreme Court -was to forget in 1954--a provision specifically recognizing and -sanctioning the institution of slavery as a custom in no way -violative of the Fifth Amendment’s guarantee that no person may be -deprived of his liberty without due process of law. No friend of -the court yet has been able to explain exactly how a constitutional -provision that did not prohibit slavery could be interpreted to -prohibit racially separate but equal public schools in the District -of Columbia. No matter. The more significant provisions of Section 9 -go to the nine flat prohibitions therein placed upon the Congress. -Here the States laid down the law to the joint government they were -creating: The Congress could not (1) interfere with the importation -of slaves prior to 1808; (2) suspend the privilege of the writ of -habeas corpus; (3) pass a bill of attainder or (4) an ex post facto -law; (5) impose a direct tax except in proportion to the census; (6) -place a tax or duty on articles exported from any State; (7) give -preference in any regulation of commerce or revenue to the ports of -one State over those of another; (8) draw money from the Treasury -except as a consequence of appropriations made by law, or (9) grant -titles of nobility. - -Section 10 follows with fourteen prohibitions the States agreed to -put upon themselves by the Constitution. No State may (1) enter into -a treaty or confederation; (2) grant letters of marque and reprisal; -(3) coin money; (4) emit bills of credit; (5) make anything but gold -and silver coin legal tender; (6) pass any bill of attainder or (7) -ex post facto law or (8) law impairing the obligation of contracts; -(9) grant any title of nobility; or, without the consent of the -Congress, (10) lay any duty on imports or exports; (11) lay any duty -of tonnage; (12) keep troops or ships of war in time of peace; (13) -enter into any compact with another State, or (14) engage in war -unless actually invaded or in such imminent danger as will not admit -of delay. - -_Article II._ The provisions of the Constitution dealing with the -election and office of the President are significant in this brief -review because of the indispensable function that is assigned to the -States as States, even in the choice of a President. As a matter of -law, the popular vote that is cast for presidential candidates in -the Republic as a whole is meaningless. What counts, plainly, is -the vote within each State, for this choice by the people within -their State by custom governs the action of presidential electors -who are appointed in each State “in such manner as the legislature -thereof may direct.” And should the presidential electors fail to -give any one candidate a majority of their votes, the election goes -immediately to the House of Representatives where the votes shall be -taken “by States, the representation from each State having one vote.” - -The federal nature of our Union also is made apparent in the -provisions of Section 2, which leave to the States the command of -their own militia except “when called into the actual service of the -United States,” and vest in the Senate a powerful control upon the -executive power of the President. It is only with the advice and -consent of the Senate that the President may make treaties, appoint -ambassadors, and name judges of the Supreme Court and other officers. -And the consent of Senators, to repeat, in a very real sense is the -consent of the States as such. - -_Article III._ The Constitution vests the judicial power of the -United States (with such exceptions, and under such regulations as -the Congress shall make) in one Supreme Court and in the inferior -tribunals established by law. The chief point the advocate of -States’ rights might emphasize here is that the high court’s power is -entirely _judicial_ in nature; its jurisdiction extends to cases in -law and equity arising under the Constitution, under Federal law, and -under treaties made under the authority of the United States, and to -“controversies” in which a State as such, or diversity of citizenship -on the part of litigants, may play a part. - -Section 2 makes clear that the States must be considered separate -entities in the trial of crimes, just as they are considered separate -entities in the election of Congressmen: Crimes are to be tried “in -the State where the said crimes shall have been committed.” - -_Article IV._ All four sections of the Fourth Article are concerned -with the States, their citizens, their obligations to other States, -and their rights as members of the Federal Union. Here is the -provision that “full faith and credit shall be given in each State -to the public acts, records and judicial proceedings of every other -State.” The second section explicitly acknowledges State citizenship -as distinct from United States citizenship. It says that “the -citizens of each State shall be entitled to all privileges and -immunities of citizens in the several States.” This section also -provides for the extradition of persons charged with crime, and prior -to the Thirteenth Amendment, for the compulsory return of fugitive -slaves. Section 3 protects the States from having new States carved -out of their territory. Section 4 guarantees “to every State in this -Union a republican form of government.” - -_Article V._ The brief provision dealing with amendment of the -Constitution is of paramount importance in any understanding of -the South’s protest against the school decision. John Taylor of -Caroline once defined sovereignty as “the will to enact, the power to -execute.” John Marshall spoke in the _Cohens_ case of the “supreme -and irresistible power to make and unmake.” Article V defines and -locates this supreme power--not in “the whole body of the people,” as -Marshall carelessly remarked, but in “three-fourths of the several -States.” - -The scheme for amendment of the Constitution goes to the very -essence of what makes the American Union great and unique among the -powers of the earth: We do not accept the supremacy of “majority -rule.” If there is one ancient parliamentary principle to which the -Constitution does _not_ subscribe, it is the principle of majority -rule. In every major question touched upon in the Constitution--for -the impeachment of officers, the overriding of a veto, the -ratification of a treaty, the proposing and adopting of amendments to -the Constitution--in all of these, mere majorities are not enough. -Some margin of more than a majority is required. And when it comes -to changing the Constitution itself, the explicit provision is that -no change can be made without the expressed and tacit approval of -at least three-fourths _of the States_. The laws, customs, desires, -preferences of a minority of the States are not to be blindly -overthrown by any 51 per cent of the people; and until the _Brown_ -case came along, it was not imagined in the South that Article V -could be suspended, and the Constitution effectively amended, by the -will of nine judges. - -The substance of Article VI has been quoted earlier, and the -concluding Article VII is notable chiefly for the light it sheds upon -the relationship of the States to one another within the Federal -Union: “The ratification of the conventions of nine States,” it says, -“shall be sufficient for the establishment of this Constitution -_between the States so ratifying the same_.” The language plainly -justifies what sometimes is referred to disparagingly as “the compact -theory,” as if a concept of the Constitution as a compact “between -the States so ratifying the same” were no more than a gauzy illusion -of Calhounian metaphysicians. The Constitution is in fact, as even -Mr. Justice Douglas has described it, a “compact between sovereigns” -(_New York_ v. _United States_, 362 U. S. 572). The United States -of America, as a corporate being, came into existence with New -Hampshire’s ratification as the ninth State on June 21, 1788. If -Virginia, New York, North Carolina, and Rhode Island thereafter had -failed to ratify (the vote was 89 to 79 in Virginia, 30 to 27 in New -York, and 34 to 32 nearly two full years later in Rhode Island), they -might be to this day sovereign and independent States, small nations, -republics in their own regard. It was by their own voluntary actions -that the States accepted the Constitution and agreed to be bound by -it. As partners in a joint venture they entered into compact; and -the Constitution was, and is, the written instrument by which their -mutual understanding is set down, not to be altered without the -consent of three-fourths of them. - -The ratifying conventions, especially those in the key States -of Virginia and New York, provide abundant documentation of the -prophetic vision with which the Founding Fathers sought to protect -their infant Republic from the predictable excesses of “big -government.” Our nation was created in an abiding sense of distrust; -most of _The Federalist_ papers are devoted toward soothing and -allaying the fears of those who apprehended that one day the central -government would get out of hand. “Suspicion is a virtue,” cried -Patrick Henry in the Virginia convention, “as long as its object -is the preservation of the public good, and as long as it stays -within proper bounds.... Guard with jealous attention the public -liberty! Suspect everyone who approaches that jewel!... I shall -be told I am continually afraid; but, Sir, I have strong cause of -apprehension. In some parts of the plan before you, the great rights -of freemen are endangered, in other parts absolutely taken away.... -But we are told that we need not fear, because those in power, being -our representatives, will not abuse the powers we put in their -hands. I am not well versed in history, but I will submit to your -recollection, whether liberty has been destroyed most often by the -licentiousness of the people, or by the tyranny of rulers?” - -To put at rest these widespread fears of excessive centralism, the -ratifying States demanded a series of explicit amendments to the -Constitution, intended to place further express prohibitions upon the -Congress. These amendments became, of course, the Bill of Rights; -and important as the first eight amendments are, the forgotten -Ninth and Tenth speak with telling eloquence of the nature of our -political institutions. The Ninth asserts that “the enumeration in -the Constitution of certain rights shall not be construed to deny -or disparage others retained by the people.” And the Tenth, once -insisted upon by New York as positively as by Virginia, declares in -words too clear possibly to be misunderstood that “the powers not -delegated to the United States by the Constitution, nor prohibited -by it to the States, are reserved to the States respectively, or to -the people.” - -There in the Tenth Amendment is the key that should unlock -all mysteries of construction, wherever the State and Federal -relationship is at issue. It does not treat of “rights.” Rights -belong to people, and are retained by them in the Ninth. The Tenth -deals with powers, and its careful wording spells out the essence -of our Union. The Congress has no powers whatever, save those the -States have delegated to it “by the Constitution.” If authority for -some congressional act cannot be found in the Constitution, the -authority does not exist, for the Congress has no implied or inherent -powers; its powers begin and end with the powers enumerated in the -written instrument itself--including, to be sure, the power to adopt -“necessary and proper” laws to put the powers to work. All other -powers, not prohibited to the States _by the Constitution_, are -expressly reserved to the States respectively, or to the people. - -There is great meaning here for the issue that prompts this brief. -What the South has said, repeatedly, earnestly, unavailingly, is -that the power to operate public schools plainly is a power reserved -to the States respectively _by the Constitution_. The power is not -delegated to the United States; it is not prohibited to the States -by the Constitution; therefore it remains with them. The power to -operate public schools necessarily embraces the power to decide what -kind of public schools will be operated; and so long as the States do -not violate any prohibition laid upon them by the Constitution, they -are free to operate whatever schools they please. Their contention -is that nothing in the original Constitution of 1788, nothing in the -pre-War amendments, nothing in the Reconstruction amendments, and -nothing added to the Constitution in this century was intended to -prohibit to the States the power to operate racially separate public -schools. On the contrary, the South contends that this power plainly -was recognized, acknowledged, and judicially sanctioned in States -North and South for eighty years after the Fourteenth Amendment -became operative; and we deny that a construction so long placed -upon the Constitution, in an area of public affairs so vitally and -intimately affecting the daily lives of so many millions of persons, -validly may be wiped out by a stroke of judicial pens. - - -III - -The four cases that were to coalesce as _Brown_ v. _Board of -Education_ had their beginnings in four widely separated proceedings. -In the first of the suits, Harry Briggs, Jr., and forty-five other -Negro children of Clarendon County, S. C., brought an action on -December 22, 1950, against R. W. Elliott and other members of the -county’s School District 22. The following March, in Kansas, Oliver -Brown and other colored children filed suit against Topeka’s board of -education. In May 1951, Dorothy E. Davis and other Negro plaintiffs -in Prince Edward County, Va., launched their proceeding against -county officials. Nine months later, in the early spring of 1952, -Ethel Louise Belton and others sued for nondiscriminatory admission -to the public schools of Hockessin and Wilmington, Del. - -Each of the suits was carefully coordinated with the others by the -National Association for the Advancement of Colored People, and each -had the same object--overthrow of the “separate but equal” rule -that had governed the operation of racially separate schools since -Reconstruction days. Counsel’s plan was to show, first, that school -facilities for white and Negro children were not equal as a matter -of fact, but this was not so important; beyond this--and it was by -far the more significant aim--the object was to prove, as Thurgood -Marshall said in South Carolina, that “the segregation of pupils in -and of itself is a form of inequality,” and hence a violation of the -Fourteenth Amendment’s requirement of equal protection of the law. - -The Clarendon County case, which came on for trial before a -three-judge Federal court in Charleston May 28-29, 1951, provided -the pattern. The pleadings were drafted by Marshall himself and by -Robert L. Carter of New York, the two top lawyers for the National -Association for the Advancement of Colored People. (In 1961, Marshall -became a Federal circuit judge.) - -The facts were not in great dispute. At that time, there were in -Clarendon County as a whole 6500 Negro children and 2375 white -children. District 22 had 684 Negro elementary pupils and 150 Negro -high school pupils, plus 102 white elementary pupils and 34 white -high school pupils. The Negro pupils of District 22 went to three -schoolhouses: Scott Branch (a combined elementary and high school), -Liberty Hill, and Rambay. All the white pupils went to the Summerton -elementary and high school. It was shown that the facilities for -white children, though old (the Summerton high school was built in -1907), were in many respects far superior to the facilities for -the Negro children. The two-room Rambay School and the four-room -Liberty Hill School had no running water, and Rambay had no electric -power. The Negro schools had few of the educational aids provided -at Summerton; their playgrounds were inferior; toilet facilities at -the two smaller buildings were outside privies. County officials -pointed out that neither water nor sewage lines existed in the area -of the two schools; in the remote rural section served by Rambay, -no electric power was available to anyone; the library for colored -pupils at Scott Branch, they said, was superior to the library for -white pupils at Summerton; and they denied any discrimination in -transportation, janitorial services, and other amenities. As the -case went to trial, however, counsel for Clarendon County confessed -a general inequality in physical facilities, described a State-wide -plan instituted by Governor Byrnes for school improvements, and -pledged a prompt effort to achieve equality. - -By far the most significant evidence in the Clarendon County case -came from a group of witnesses summoned by the plaintiffs to testify -on the psychological effects of segregation itself. Kenneth Clark, -assistant professor of psychology at the New York City College, was -a key figure in this phase of the NAACP’s assault. In the _Teachers’ -College Record_ for October 1960, he revealingly describes the -fashion in which he was approached by Carter in February 1951, -on behalf of the NAACP’s Legal Defense Fund, to prepare exhibits -and test findings that would support the plaintiffs’ side in the -School Segregation Cases. Carter wanted material that would show -how “segregation inflicts psychological damage on its victims,” and -Clark collaborated with the lawyers in preparing psychological data -“to be used in whatever ways they believed most effective in the -presentation of their case.” As part of the plan, Clark himself went -to Clarendon County, and administered the “doll test” to twenty-six -Negro children; in this test, the subjects are shown two dolls -identical except for skin coloring--one doll is white, the other -brown. They then are asked which doll they like best, which doll is -“nice,” which doll is “bad,” and which doll “is like you?” From the -answers to these questions, Clark testified in the Clarendon case, -“we get some picture of the child’s concept of his own color, and we -also get an indication of the child’s anxieties and confusions about -his color and his feelings.” Not surprisingly, the twenty-six pupils -Clark tested in Clarendon County were found to have been “definitely -harmed in the development of their personalities.” - -Other witnesses for the plaintiffs included Harold McNalley, -associate professor of education at Columbia Teachers College; Ellis -O. Knox, professor of education at Howard University; James L. Hupp, -professor of education and psychology at Wesleyan College of West -Virginia; David Krech, professor of social psychology at Harvard; -and Mrs. Helen Trager, a lecturer in psychology at Vassar. Their -testimony, admitted over defense objections that it was irrelevant -and immaterial, was intended to support the plaintiffs’ primary -contention that segregation, in and of itself, caused emotional -damage to the Negro child, and that segregated schools could never be -made “equal” as a matter of law. - -On June 23, 1951, the Fourth Circuit’s Chief Judge John J. Parker, -joined by District Judge George Bell Timmerman, handed down an -opinion in the Clarendon County case. The third member of the -court, District Judge J. Waties Waring, strongly dissented to the -Parker-Timmerman decision. The majority decree directed county -officials to proceed at once with genuine equalization of public -school facilities, but the court refused to upset the long-standing -doctrine of “separate but equal.” The late Judge Parker was one of -the nation’s most widely admired jurists, a North Carolinian who -had then had more than twenty-five years’ experience on the bench. -His opinion (98 F. Supp. 529), though it subsequently was to be -reversed, merits respectful consideration in any study of the South’s -position. - -On the key question developed by the plaintiffs--that segregation in -itself is a denial of equal protection--Parker took a calmly judicial -approach: This is a “matter of legislative policy for the several -States,” he said, “with which the Federal courts are powerless to -interfere.” He continued: - - One of the great virtues of our constitutional system is that, - while the Federal government protects the fundamental rights of - the individual, it leaves to the several States the solution of - local problems. In a country with a great expanse of territory, - with peoples of widely differing customs and ideas, local self - government in local matters is essential to the peace and happiness - of the people in the several communities as well as to the strength - and unity of the country as a whole. It is universally held, - therefore, that each State shall determine for itself, subject to - the observance of the fundamental rights and liberties guaranteed - by the Federal Constitution, how it shall exercise the police - power, i.e., the power to legislate with respect to the safety, - morals, health and general welfare. And in no field is this right - of the several States more clearly recognized than in that of - public education. - -Judge Parker quoted from an opinion by the District of Columbia’s -Judge E. B. Prettyman, an outstanding jurist who had considered -the question a year earlier in _Carr_ v. _Corning_ (182 F.2d 14). -There Judge Prettyman raised the question of whether the Fourteenth -Amendment had lifted the entire problem of race relations out of the -hands of all legislatures and settled it. “We do not think it did,” -he said. “Such problems lie naturally in the field of legislation, a -method susceptible of experimentation, of development, of adjustment -to the current necessities in a variety of community circumstance. We -do not believe that the makers of the first ten amendments in 1789 or -of the Fourteenth Amendment in 1866 meant to foreclose legislative -treatment of the problem in this country. This is not to decry -efforts to reach that state of common existence which is the obvious -highest good in our concept of civilization. It is merely to say -that the social and economic inter-relationship of two races living -together is a legislative problem, as yet not solved, and is not a -problem solved fully, finally or unequivocally by a fiat enacted many -years ago. We must remember that on this particular point we are -interpreting a Constitution and not enacting a statute.” - -Judge Parker went on in his own opinion to review decisions of -the Supreme Court sustaining the separate-but-equal doctrine, and -to distinguish between education at the graduate-school level and -education at the elementary-school level. In dealing with the grammar -schools, under systems of compulsory attendance, local lawmakers have -problems of educational policy that must take into account not only -questions of instruction “but also of the wishes of the parent as -to the upbringing of the child and his associates in the formative -period of childhood and adolescence.” If public education is to -have the support of the people through their legislatures, Judge -Parker said, “it must not go contrary to what they deem for the best -interests of their children.” The plaintiffs’ expert witnesses had -testified that mixed schools would benefit children of both races -by exposing them to democratic opportunities in community living. -Defense witnesses, on the other hand, had testified that mixed -schools would result in friction and tension. Said the court: - - The questions thus presented are not questions of constitutional - right but of legislative policy, which must be formulated, - not _in vacuo_ or with doctrinaire disregard of existing - conditions, but in realistic approach to the situations to which - it is to be applied.... The Federal courts would be going far - outside their constitutional function were they to attempt to - prescribe educational policies for the States in such matters, - however desirable such policies might be in the opinion of some - sociologists or educators. For the Federal courts to do so would - result, not only in interference with local affairs by an agency - of the Federal government, but also in the substitution of the - judicial for the legislative process in what is essentially a - legislative matter. - - The public schools are facilities provided and paid for by the - States. The State’s regulation of the facilities which it furnishes - is not to be interfered with unless constitutional rights are - clearly infringed. There is nothing in the Constitution that - requires that a State grant to all members of the public a - common right to use every facility that it affords.... The equal - protection of the laws does not mean that the child must be treated - as the property of the State and the wishes of his family as to his - upbringing be disregarded. - -In oral argument of the case, Thurgood Marshall had urged the -trial court to create judicial history by abandoning, on its own -motion, the precedents of many years in support of “separate but -equal.” Judges Parker and Timmerman were not willing to do so. -These unreversed decisions, they said, were squarely in point and -conclusive. If this long line of cases were to be overturned or held -outmoded, the Supreme Court itself would have to take that step. And -Parker concluded: - - To this we may add that, when seventeen States and the Congress of - the United States have for more than three-quarters of a century - required segregation of the races in the public schools, and when - this has received the approval of the leading appellate courts - of the country including the unanimous approval of the Supreme - Court of the United States at a time when that Court included - Chief Justice Taft and Justices Stone, Holmes and Brandeis, - it is a late day to say that such segregation is violative of - fundamental constitutional rights. It is hardly reasonable - to suppose that legislative bodies over so wide a territory, - including the Congress of the United States, and great judges of - high courts have knowingly defied the Constitution for so long a - period or that they have acted in ignorance of the meaning of its - provisions. The constitutional principle is the same now that it - has been throughout this period; and if conditions have changed - so that segregation is no longer wise, this is a matter for the - legislatures and not for the courts. _The members of the judiciary - have no more right to read their ideas of sociology into the - Constitution than their ideas of economics._ [Emphasis supplied.] - -In the course of time, to be sure, the Warren court was to do -precisely what Judge Parker said judges ought never to do, but -nearly three years were to elapse before that famous decree would -descend upon the South. Meanwhile, the other three cases, in Kansas, -Virginia, and Delaware, were still to be tried. They followed the -Clarendon pattern rather closely. In Topeka, counsel for the Negro -plaintiffs made little effort to show physical inequalities in the -city’s white and Negro schools. The city was then operating eighteen -white schools and four Negro schools, under a State law permitting, -but not compelling, racial separation. The trial court found as a -fact (98 F. Supp. 797) that the facilities were substantially equal: -“It is obvious that absolute equality of physical facilities is -impossible of attainment.” The broader question presented by the -plaintiffs “poses a question not free from difficulty,” but Judge -Walter A. Huxman and his colleagues in Kansas was no more disposed -than Judge Parker and Judge Timmerman in South Carolina to upset -long-established precedents. The three-judge court unanimously upheld -segregation in the Topeka schools. - -In Virginia, the Prince Edward County case was tried February 25-29, -1952, before a court composed of Circuit Judge Armistead Dobie and -District Judges Sterling Hutcheson and Albert Bryan. Once again, as -in South Carolina, the defense confessed the physical inequality -of white and Negro school facilities, and accepted a court order -requiring prompt and diligent efforts to make the facilities equal. -But here, too, physical equality was not the principal issue. The -question was whether segregation in itself violated the Fourteenth -Amendment. On this point, the Negro plaintiffs produced a fresh array -of sociologists, anthropologists, psychologists, and psychiatrists to -testify to the harmful effects of segregation; the defense produced -“equally distinguished and qualified educationists and leaders in -other fields” who emphatically asserted that, given equivalent -physical facilities, offerings, and instruction, the Negro would -receive in a separate school the same educational opportunity he -would obtain in a mixed school. Each of the expert witnesses, -said Judge Bryan, “offered cogent and appealing grounds for his -conclusion.” - -But the three Federal jurists in Virginia took the same position that -Parker and Timmerman had taken in Clarendon County--in brief, that -the only duty of a Federal court in such a case is to determine -whether a State’s policy is so arbitrary and capricious as to be -wholly without support in reason. Here, the “unbroken usage in -Virginia for more than eighty years” offered evidence of a policy -reflecting the established mores of the people. So distinguished -a witness as Virginia’s Colgate W. Darden, a former Governor and -then president of the University of Virginia, had testified that -elimination of separate schools would injure both races. Under the -circumstances, the court was unable to say that the State’s policy of -racially separate schools was without substance in fact or reason: - - We have found no hurt or harm to either race. This ends our - inquiry. It is not for us to adjudge the policy as right or - wrong--that the Commonwealth of Virginia shall determine for itself. - -Last of the four cases to be heard was in Delaware, where the State -Chancellor on April 1, 1952, entered an order directing the admission -of a number of Negro children to the public schools of New Castle -County on a nondiscriminatory basis (87 A.2d 862). The evidence -was not in dispute: The colored high school students were denied -admission to Claymont High School and were required instead to attend -Howard High School in neighboring Wilmington. Elementary pupils were -barred from Hockessin School No. 29 and required instead to attend -the all-Negro Hockessin School No. 107. The Chancellor found that -inequalities did in fact exist, in teacher training, pupil-teacher -ratio, extracurricular activities, transportation, physical plant, -and the like. Though he was inclined to agree that segregation in -itself “results in Negro children, as a class, receiving educational -opportunities which are substantially inferior to those available -to white children,” the Chancellor was unwilling to decide the -case on this new ground. On the merits of their case alone, under -the separate-but-equal rule, the Negro plaintiffs were entitled to -immediate relief. On August 28, 1952, the Supreme Court of Delaware -affirmed (91 A. [2d] 127). And the Supreme Court of the United -States, having granted certiorari in each of the cases, set them for -joint argument December 9-11, 1952. - - -IV - -The Supreme Court of the United States then was headed by Fred M. -Vinson of Kentucky, as Chief Justice. Others who heard the ten hours -of argument that December were Hugo L. Black of Alabama, Felix -Frankfurter of Massachusetts, William O. Douglas of Connecticut, -Robert H. Jackson of New York, Harold H. Burton of Ohio, Tom C. Clark -of Texas, Sherman Minton of Indiana, and Stanley Reed of Kentucky. - -It is difficult--impossible might be a better word--to guess at the -outcome of a Supreme Court case by attempting to read the minds -of the judges through the questions asked from the bench. Here, -however, it seemed unusually clear that the court was seriously -divided. Burton indicated the course that ultimately was to be taken. -During argument on the Topeka case, he put a question to Paul E. -Wilson, assistant attorney general of Kansas: “Don’t you recognize -it as possible that in seventy-five years the social and economic -conditions of the Nation have changed so that which might have been a -valid interpretation of the Fourteenth Amendment seventy-five years -ago would not be valid today?” Wilson replied that he recognized the -possibility, but did not believe the record disclosed such a change. -Evidently recalling some of Judge Parker’s language in the Clarendon -County decision, Burton persisted: “But that might be different from -saying that these courts of appeals and State supreme courts have -been wrong for seventy-five years?” Wilson agreed, but made the point -that until the Supreme Court itself overturned its own precedents, -no other guide to the law was available. When John W. Davis arose -to argue the South Carolina appeal, Burton put the same question to -him. Davis said: “My answer to that is that changed conditions may -affect policy, but changed conditions cannot broaden the terminology -of the Constitution.” Changes in social or economic conditions, -Davis thought, raised “an administrative or political question, -not a judicial one.” Burton subsided with a remark that he viewed -the Constitution as a living document “that must be interpreted in -relation to the facts of the times in which it is interpreted.” - -Pointedly stating a conflicting view, Frankfurter interrupted -Thurgood Marshall’s argument at one point to recall that the court -recently had upheld the power of Louisiana to restrict the calling -of river pilots “to the question of who your father was.” The court -sustained that legislation, he said, “not because we thought it -admirable or because we believed in primogeniture, but because it -was so imbedded in the history of that problem in Louisiana that we -thought on the whole that was an allowable justification.” - -At the conclusion of the argument, attorneys on both sides were -hopeful. The Negro forces felt reasonably certain they had Douglas, -Black, and Burton; the State attorneys thought they had impressed -Jackson, Minton, Frankfurter, and probably Clark. Vinson and Reed -were question marks. It was anticipated that a decision would be -handed down by a divided court some time in March or April. - -Instead, time ran on until June 8, 1953, when the court, unable to -reach any decision on which a majority of the court could agree, -set the case for reargument on five questions. Two of the questions -were technical in nature: Assuming it were decided that segregation -in itself violates the Fourteenth Amendment, how should decrees be -formulated? How should the cases be handled on remand to the lower -courts? The other three questions went to the very heart of American -constitutional law. - - - _Question 1: What evidence is there that the Congress which - submitted and the State legislatures and conventions which ratified - the Fourteenth Amendment contemplated or did not contemplate, - understood or did not understand, that it would abolish segregation - in public schools?_ - -The Supreme Court posed this first question, in theory at least, -for one reason only: Its object was to determine whether the power -to operate racially separate schools ever had been prohibited to -the States _by the Constitution_; for if this power had not been -prohibited to the States by the Constitution, it was theirs to -exercise respectively, for good or ill. (It was conceded that the -power never had been prohibited to them by any law of the United -States adopted pursuant to the Constitution). Obviously, nothing in -the Constitution possibly could prohibit this power to the States -except Section 1 of the Fourteenth Amendment. This section imposes -three prohibitions on the States: (1) No State shall make or enforce -any law which shall abridge the privileges or immunities of citizens -of the United States; (2) nor shall any State deprive any person of -life, liberty, or property without due process of law; (3) nor deny -to any person within its jurisdiction the equal protection of the -laws. - -In point of fact, it was only the third of these prohibitions that -concerned the court. (A right to attend school in any particular -State is not a privilege of a “citizen of the United States,” but of -a citizen of the State in question; and only by rather far-fetched -reasoning could it be contended that by placing white children -in one school and Negro children in another school, a State was -depriving any person of life, liberty, or property without due -process of law. From the beginning, the plaintiffs’ case rested in an -assertion that equal protection had been denied the Negro pupils.) -How was the court to be advised if this provision of the Fourteenth -Amendment prohibited to the States the power to operate racially -separate schools? Only one procedure is known to the law; it is the -procedure used by the Supreme Court and by other courts from the very -beginning of the Republic: _It is to determine the intent of the -framers._ What did the Congress and the ratifying States mean by the -Fourteenth Amendment? In terms of racially separate public schools, -what did they intend the amendment to accomplish? What was their -understanding? In construing a written Constitution, an inquiry into -intent is paramount. Cooley’s _Limitations_ states the rule in this -fashion: - - A cardinal rule in dealing with written instruments is that - they are to receive an unvarying interpretation, and that their - practical construction is to be uniform. A Constitution is not - to be made to mean one thing at one time, and another at some - subsequent time when the circumstances may have so changed as - perhaps to make a different rule in the case seem desirable. A - principal share of the benefit expected from written Constitutions - would be lost if the rules they established were so flexible as - to bend to circumstances or be modified by public opinion. It is - with special reference to the varying moods of public opinion, - and with a view to putting the fundamentals of government beyond - their control, that these instruments are framed; and there can be - no such steady and imperceptible change in their rules as inheres - in the principles of the common law. These beneficent maxims of - the common law which guard person and property have grown and - expanded until they mean vastly more to us than they did to our - ancestors, and are more minute, particular, and pervading in their - protections; and we may confidently look forward in the future - to still further modifications in the direction of improvement. - Public sentiment and action effect such changes, and the courts - recognize them; but a court or legislature which should allow a - change in public sentiment to influence it in giving construction - to a written Constitution not warranted by the intention of its - founders, would be justly chargeable with reckless disregard of - official oath and public duty.... What a court is to do, therefore, - is to declare the law as written, leaving it to the people - themselves to make such changes as new circumstances may require. - The meaning of the Constitution is fixed when it is adopted, and it - is not different at any subsequent time when a court has occasion - to pass upon it. - -Chief Justice Taney made the same point in the _Dred Scott_ case -(19 Howard 393). It had been argued (this was in 1857) that public -attitudes had changed enormously toward the Negro since the adoption -of the Constitution sixty-eight years earlier. But should this shift -in public attitude induce the court “to give to the words of the -Constitution a more liberal construction in their favor than they -were intended to bear when the instrument was framed and adopted”? -Taney thought such an argument “altogether inadmissible” in any -tribunal called upon to interpret the Constitution: - - If any of its provisions are deemed unjust, there is a mode - prescribed in the instrument itself by which it may be amended; - but while it remains unaltered, it must be construed now as it was - understood at the time of its adoption. It is not only the same - in words, but the same in meaning, and delegates the same powers - to the government, and reserves and secures the same rights and - privileges to the citizen; and as long as it continues to exist - in its present form, it speaks not only in the same words, but - with the same meaning and intent with which it spoke when it came - from the hands of its framers, and was voted on and adopted by the - people of the United States. Any other rule of construction would - abrogate the judicial character of this court, and make it the mere - reflex of the popular opinion or passion of the day. This court was - not created by the Constitution for such purposes. - -Many other authorities, over a span of generations, have said -substantially the same thing about the necessity of courts’ holding -steadfastly to the demonstrable intention of a constitutional -provision. “The ultimate touchstone of constitutionality,” -Frankfurter once asserted, “is the Constitution itself and not -what we have said about it” (306 U. S. 491). Hughes urged his -colleagues not to be swayed by arguments that extraordinary events -may justify abandonment of the rule: “Extraordinary conditions do not -create or enlarge constitutional power” (245 U. S. 495). Douglas, -dissenting in _New York_ v. _the United States_ (326 U. S. 572), -sternly lectured his brothers on their obligations in this regard; -when a constitutional rule is to be fashioned that undermines the -long-understood sovereignty of the States, he said, it ought never -to be done by judicial construction: “Any such change should be -accomplished only by constitutional amendment.” - -This solid principle of constitutional law was in the court’s mind -that day in June 1953 when it asked for reargument in the School -Segregation Cases. What happened to the principle thereafter is sadly -apparent: The court tossed it summarily to one side. But briefly, at -least, the court recognized that in constitutional cases, clocks must -always be turned back. - -The NAACP, on behalf of the Negro plaintiffs, did its dead-level -best to come up with some history to support its case. The story of -the plaintiffs’ exertions was confessed on December 28, 1961, by -Professor Alfred H. Kelly, of Wayne State University in Detroit, -in an address before the annual meeting of the American Historical -Association in Washington. Excerpts from his address were reprinted -in the _U. S. News & World Report_ of February 5, 1962. They provide -a fascinating, and a sobering, revelation of what Negrophile zeal can -do to an honest man. - -“One day in early July, 1953,” Professor Kelly began, “I received a -letter from Mr. Thurgood Marshall.” - -Marshall wanted Professor Kelly to prepare a research paper that -would support the NAACP’s answer to the first question posed by the -court. At stake was the venerable “separate but equal” rule, to which -Professor Kelly, as a person, was deeply opposed. Marshall explained -that the rule was crumbling and about to fall; but if the rule were -to be overthrown after all these years, “it would entail a piece of -judicial lawmaking which could be justified only by a philosophy -of extreme judicial activism--and this at the hands of a Court -wherein several expressed their disapproval of judicial activism -and lawmaking by Court-made fiat.” But if this revolution in the -legal status of the Negro were to be achieved, the attempt had to be -made--and Dr. Kelly was ready to help make it. After all, both the -lawyers and the scholars at work on the case agreed that the old rule -had to be disposed of--but how? Dr. Kelly paraphrased their dilemma: - - We would like to dispose of the Plessy rule, for once and for - all.... - - But we are fearfully embarrassed by the apparent historical - absurdity of such an interpretation of the Fourteenth Amendment and - equally embarrassed by the obvious charge that the Court will be - “legislating” if it simply imposes a new meaning on the Amendment - without regard to historical intent. - -How to escape from this embarrassment? Why, historians must produce -for the NAACP a plausible historical argument to justify the court -in pronouncing (a) that the intent of the Fourteenth Amendment in -this regard was unclear, or (b) that the amendment really had been -intended, all along, to abolish school segregation, or at least to -sanction its abolition by judicial fiat. - -So Dr. Kelly went to work. As a constitutional historian, he -acknowledged what the South’s attorneys were to contend, that the -Fourteenth Amendment was the direct outgrowth of the Civil Rights Act -of 1866. He did what a Southern lawyer or anyone else would do under -the circumstances: He went to the _Congressional Globe_ for the first -session of the Thirty-ninth Congress of 1866 and read the debates -himself. To his intense dismay, he found the _Globe_ “had a good deal -to say about school segregation.” And at first blush, “most of what -appeared there looked rather decidedly bad....” Indeed, it looked as -if John W. Davis, arguing the case for the South Carolina defendants, -“would win the historical argument hands down!” - -But Dr. Kelly spat on his hands and went to work. In the course of -time, by his own candid and tortured admission, “I ceased to function -as a historian, and, instead, took up the practice of law without a -license.” - - The problem we faced was not the historian’s discovery of truth, - the whole truth, and nothing but the truth; the problem instead - was the formulation of an adequate gloss on the fateful events of - 1866 sufficient to convince the Court that we had something of an - historical case.... - - It is not that we were engaged in formulating lies; there was - nothing as crude and naive as that. But we were using facts, - emphasizing facts, bearing down on facts, sliding off facts, - quietly ignoring facts and, above all, interpreting facts in a way - to do what Marshall said we had to do--“get by those boys down - there.” - -Charitably, a curtain may be drawn over the agonizing sessions that -Dr. Kelly and his associates, sincerely wedded to a social and -legal cause, spent in pacing up and down a suite in the NAACP’s -headquarters on West 40th Street in New York, dictating and arguing -and glossing over, “hammering out a strategy” that would contain some -essential measure of historical truth, but yet ... but yet.... - -They produced a 235-page brief. It must stand as a pathetic monument -to what happens when historians cease to be historians and take up -the unlicensed practice of law. The conclusions there drawn, that -the “proponents of absolute equalitarianism emerged victorious in -the Civil War and controlled the Congress that wrote the Fourteenth -Amendment,” are a bitter travesty upon the actual course of events. -For it is plain to any objective student--to any man who will stand -still long enough to ask and receive an answer to the elementary -question, _What happened?_--that no such thing occurred. The visible, -palpable, unrelenting, unavoidable truth is that Sumner and Stevens -and their fellow radicals did not control the Congress in 1866; they -did _not_ get what they wanted in the Fourteenth Amendment; they got -half a loaf at most: And the proof of the pudding may be found where -it always lies, in what happened after the amendment was adopted. - -The answer to the court’s first question is perfectly clear: _Of -course_ the Congress that submitted the Fourteenth Amendment, and the -States that ratified it, did not contemplate or understand that the -amendment prohibited to the States the power to maintain segregation -in the public schools. If they had contemplated or understood -this, they would have abolished such segregation where it existed -and shunned it in the schools thereafter. In the simple, homely, -undeniable fact that such segregation was not abolished but rather -was widely continued lies a complete answer to the court’s question. -It should have been a complete answer to the whole case. - -Evidence to support this view may be adduced overwhelmingly from -three principal sources: (1) Actions of the Congress itself; (2) -actions of the State legislatures and constitutional conventions; and -(3) decisions of State and Federal courts in the period immediately -following adoption of the amendment. - - -_1. Actions of the Congress itself._ The Thirteenth Amendment to -the Constitution, prohibiting slavery within the United States, or -in any place subject to their jurisdiction, was proposed by the -Congress on January 31, 1865, two months before Lee’s surrender at -Appomattox was to end the War for Southern Independence. Northern -States promptly set the ratification process in motion, and with -a cessation of hostilities in April, Southern States came along. -During the first week of December 1865, barely ten months after -the Thirteenth Amendment had been proposed, the assents of Alabama, -North Carolina, and Georgia brought the number of ratifications to -twenty-seven--three-fourths of the thirty-six States regarded as then -“in the Union” for constitutional purposes. On December 18, 1865, -Secretary Seward declared the Thirteenth Amendment a part of the -Constitution. - -The Southern States that had been counted as never having left -the Union, for purposes of ratifying the Thirteenth Amendment, -soon discovered that for other purposes they were still out of -the Union. They were denied what the Constitution promises every -State--representation in the Congress by at least one member of the -House and two members of the Senate--and they were permitted no -hand in framing the second Reconstruction amendment that was to be -submitted the following year. This task became the responsibility of -a joint committee of six Senators and nine Congressmen, created in -December at the request of Thaddeus Stevens. - -During January and February 1866, while the committee was at work -in executive sessions, the House and Senate completed action on the -First Supplemental Freedmen’s Bureau Bill. The act is important in -tracing the meaning of the Fourteenth Amendment, for it explicitly -defined the principal civil rights and immunities that were to be -under constant discussion in the Congress for the next several -months. This law guaranteed to the newly freed Negroes in the -Southern States “the right to make and enforce contracts, to sue, be -parties, and give evidence; to inherit, purchase, lease, sell, hold -and convey real and personal property; and to have full and equal -benefit of all laws and proceedings for the security of person and -estate.” - -The Freedmen’s Bill applied, by its own terms, only to the late -Confederacy. Simultaneously, a legislative effort was launched to -secure these same civil rights in the country as a whole. On February -2, after bitter debate on its constitutionality, what was to become -the Civil Rights Act of 1866 passed the Senate. It went to the -House, and in early March was favorably reported by the Judiciary -Committee. During floor debate on March 13, Congressman Wilson of -Iowa, chairman of the committee in charge of the bill, addressed -himself to the bill’s opening provision, declaring that “there shall -be no discrimination in the civil rights or immunities among the -inhabitants of any State or Territory of the United States on account -of race, color, or previous condition of slavery.” This part of the -bill, Wilson said, “will probably excite more opposition than any -other.” He undertook to allay apprehensions: - - What do these terms mean? Do they mean that in all things civil, - social, political, all citizens, without distinction of race or - color, shall be equal? By no means can they be so construed.... - _Nor do they mean that ... their children shall attend the same - schools. These are not civil rights or immunities._ [Emphasis - added.] - -The Civil Rights Bill passed the House by 111-38 on March 13; it was -vetoed on March 27, and passed over the veto on April 9. - -These dates are important. Late in February 1866, the Stevens -Committee had brought into the House one draft of a proposed -Fourteenth Amendment. It had been debated, and then sent back for -more work. On April 21, a new draft came before the committee. -On April 25, amendments were approved in committee that put the -amendment in the form in which it finally was to become part of the -Constitution. These changes wrote into Section 1 new prohibitions -upon the powers of the States: “No State shall make or enforce any -law which shall abridge the privileges or immunities of citizens of -the United States; nor shall any State deprive any person of life, -liberty, or property, without due process of law; nor deny to any -person within its jurisdiction the equal protection of the law.” - -When the proposed constitutional amendment reached the floor of the -House on May 8, both its friends and its foes reached remarkable -agreement on the amendment’s primary purpose: to nail into the -Constitution the Civil Rights Act of 1866 that on April 9 had been -passed over the President’s veto. Stevens reminded his radical -colleagues that a mere law always was subject to repeal by a majority -of the House and Senate: “And I need hardly say that the first time -that the South with their copperhead allies obtain the command of -Congress it will be repealed.” An opponent of the resolution, Rogers -of New Jersey, said the Stevens measure “is no more than an attempt -to embody in the Constitution of the United States that outrageous -and miserable civil rights bill....” - -On the Senate side, when the resolution came there for debate on -May 23, the same view was taken. Howard of Michigan, in charge of -the paper, said the object was “to put this question of citizenship -and the rights of citizens and freedmen under the civil rights bill -beyond the legislative power.” Davis of Kentucky and Henderson -of Missouri agreed. On June 8, the Senate voted in favor of the -resolution, 33-11, with five Senators not voting; and on June 13 the -House, which then had 184 members, completed action by concurring -in the Senate amendments, 120-32, with 32 not voting. The House -margin was four votes short of the two-thirds required under the -Constitution for submitting an amendment, but the resolution was -declared to be passed anyhow. - -While all this was going on, other matters of course were coming -before the Congress. One such matter was a bill passed in the Senate -on May 21, providing for segregated schools in the District of -Columbia. A companion bill, introduced in April, adopted in May, made -effective in July, appropriated funds to the Negroes’ segregated -schools. And year after year, from that time on until 1954, the -Congress continued to provide for racially separate schools in the -District of Columbia. - -Not one iota of evidence can be adduced from the annals of Congress -in 1866 to show that any responsible member of the House or Senate -believed the Fourteenth Amendment in any fashion would affect the -operation of segregated schools in the States. All that Negro counsel -could produce in their reargument on the point in 1953, despite -the desperate labors of Dr. Kelly and his associates, were some -generalities, some sweeping statements of ideals, and other nebulous -expressions on the part of radical abolitionists on the one hand -and apprehensive States’ Righters on the other. It is plain that -the Stevens-Sumner group won from the Thirty-ninth Congress two -compromise instruments, a statute and a constitutional amendment, -both intended to guarantee to the Negro the essential civil rights -spelled out in the Freedmen’s Bill and in the Civil Rights Act--to -sue and be sued, to own and inherit property, and the like. “The -right to go to school,” as Senator Trumbull of Pennsylvania was to -say in 1872 in debating the General Amnesty Act, “is not a civil -right and never was.” - - -_2. Actions of the State legislatures and constitutional -conventions._ The proposed Fourteenth Amendment to the Constitution -went out to the States on June 18, 1866. Connecticut ratified on June -30, New Hampshire on July 6, Tennessee on July 19. New Jersey and -Oregon, both of whom later were to rescind their actions, ratified -in September. Then came a jolt: On October 27, Texas flatly rejected -the proposed amendment, by a vote of 70 to 5 in the House and 27 -to 1 in the Texas Senate. Vermont ratified on October 30, but on -November 1 Georgia rejected by 147-2 and 38-0 in its House and -Senate. Then, in rapid succession, Arkansas, Florida, North Carolina, -and South Carolina spurned the amendment. In January 1867, Virginia, -Mississippi, Kentucky, and Maryland rejected. Early in February, -Delaware and Louisiana turned it down also. - -On March 2, 1867, an infuriated Congress enacted over Johnson’s veto -a law that seems incredible by any standpoint of constitutional law. -This “Act to Provide for the More Efficient Government of the Rebel -States” further defined the districts that had been created in the -former Confederacy by earlier Reconstruction acts. Section 5 of the -Act fixed two requirements for readmission of the Southern States to -full standing in the Union. The first condition was that each of the -States adopt a new State Constitution; the second was that, at the -first legislature to be held after adoption of the new Constitution, -each State must ratify the Fourteenth Amendment. Delegates to -the State constitutional conventions were to be chosen by all -male citizens regardless of race, except felons and those who had -participated in the “rebellion.” No Confederate veteran who earlier -had been a member of a State legislature, or held any other office -under the government of a Southern State, could become a candidate -for the new legislatures to be elected. - -With that vindictive and extortionate act, military government -settled upon the South and all semblance of free republican -government vanished. With no alternative but to submit or remain -under the sword, the Southern States accepted the amendment. -Arkansas ratified in April 1868, Florida on June 9, North Carolina, -South Carolina, Alabama, and Louisiana in July. Meanwhile, Ohio on -January 13, 1868, had undertaken to rescind its ratification of the -amendment, and New Jersey, on March 25, had done the same thing. -In both States, recently the bitter foes of the South, the new -amendment was denounced as unconstitutionally approved in the House -of Representatives and unconstitutionally demanded of the Southern -States. (It was several months later, in October 1868, that Oregon -also attempted to rescind its ratification.) - -On July 20, 1868, Secretary Seward issued a cautious proclamation -certifying that the Fourteenth Amendment had been ratified. There -were, he surmised, thirty-seven States then “in the Union.” -Twenty-eight, by Seward’s count, had approved the amendment, but he -was doubtful about the whole affair. Among his twenty-eight were -Arkansas, Florida, North Carolina, Louisiana, and South Carolina, -where ratification had been sanctioned by “newly constituted and -newly established bodies avowing themselves to be acting as the -legislatures” of these States. If their resolutions were valid, and -if the original ratifications of Ohio and New Jersey were still -valid, notwithstanding their subsequent withdrawals, the amendment -was a part of the Constitution. - -On the following day, July 21, Congress passed a joint resolution -to resolve Seward’s doubts. It ordered him to declare the amendment -unconditionally adopted; and on July 28, adding the names of Alabama -and Georgia, whose notifications had just been received, Seward -declared the Fourteenth officially a part of the Constitution. - -Was the Fourteenth Amendment thus legally and constitutionally added -to the Constitution in 1868? It is exceedingly doubtful. Neither -a resolution of the Congress nor a proclamation of a Secretary -of State can supersede the Constitution itself. If the States of -Arkansas, Florida, North Carolina, Alabama, South Carolina, and -Louisiana were “in the Union” in 1865, when their ratifications -of the Thirteenth Amendment were counted among the three-fourths -necessary to adoption, it is impossible to understand how they -legally could have been read out of the Union by the act of March -2, 1867, put under military dictatorship, and ordered to ratify the -Fourteenth Amendment under duress. If the Confederate States are -eliminated from the equation altogether, a mathematical case can be -made to support ratification. Twenty-five States were represented in -the Thirty-ninth Congress that proposed the Fourteenth Amendment in -1866. Nebraska was admitted to the Union March 1, 1867. Three-fourths -of twenty-six States (for ratification purposes) is twenty States. -By the time of the proclamations and resolutions of July 1868, -twenty-one States outside the South had unconditionally ratified -the amendment. But the assumption on which the Congress proceeded -was that there were thirty-seven States in the Union in the summer -of 1868. Three-fourths of thirty-seven States (for ratification -purposes) is twenty-eight States. In order to count twenty-eight -States, the ratifications of the rescinding New Jersey and Ohio -must be added to those of Arkansas, Florida, North Carolina, -Louisiana, and South Carolina; or, in place of New Jersey and Ohio, -the ratifications of Alabama and Georgia may be substituted. In any -event, reliance must be placed upon the coerced ratifications of -either five or seven Southern States which at that time were denied -a republican government, denied representation in the Congress, and -denied the right to act freely upon the proposed amendment. This is -the tainted parenthood of the constitutional provision on which the -Supreme Court of the United States, in the school cases, sought to be -informed. - -I digress. The question here is, “What evidence is there that the -... State legislatures and conventions which ratified the Fourteenth -Amendment contemplated or did not contemplate, understood or did not -understand, that it would abolish segregation in public schools?” - -This is the evidence: - -Among the States that ratified the Fourteenth Amendment were -these twelve: Connecticut, Iowa, Maine, Massachusetts, Michigan, -Minnesota, Nebraska, New Hampshire, Oregon, Rhode Island, Vermont, -and Wisconsin. There is not a scrap of evidence to suggest that the -issue of school segregation ever was considered in any of them. Rhode -Island, Connecticut, and Michigan were the only States in this group -with as much as 2 per cent Negro population in 1870 (Rhode Island -had 5000 Negroes out of 217,000; Connecticut had 9668 Negroes in a -population of 537,000; Michigan a Negro population of 11,849 in a -total of 1,184,000.) The rest ranged down to the 346 Negroes then -resident in Oregon and the 789 then resident in Nebraska. School -segregation simply was no problem in these States in 1866. The -question never was discussed. - -Two other States that ratified the Fourteenth Amendment were Florida -and Louisiana. Both houses of Florida’s legislature, when they were -in a position to act freely, rejected the amendment unanimously. This -was in December 1866. The following March came the Reconstruction -Act, and in the course of time came a State constitutional convention -set up by military decree. It was comprised of eighteen Negroes -and twenty-seven Carpetbaggers and Scalawags. On June 9, 1868, the -Governor of Florida dispatched to a similarly chosen legislature a -message recommending “that no action be taken save that dictated by -the acts of Congress as conditions precedent to admission, to wit: -The passage of the proposed amendment to the Constitution, known as -the Fourteenth Article....” The Florida legislature submissively -ratified the amendment, 23-6 in the House, 10-3 in the Senate. Public -schools were set up, with no statutory or constitutional provision -to prevent their joint use by both races; but the evidence is -persuasive that no integration ever occurred in this period, and in -1885, when an end to Reconstruction permitted Florida to follow the -separate-but-equal pattern which by then had been solidly established -elsewhere, the Florida Constitution was amended to provide that -“white and colored children shall not be taught in the same school, -but impartial provision shall be made for both.” Certainly Florida -did not understand that the amendment, of and by itself, prohibited -the States from requiring racial separation in the schools. - -The situation in Louisiana was more chaotic still. The Louisiana -legislature unanimously rejected the amendment in February 1867. -Reconstruction followed. A constitutional convention was created, -composed of forty-nine Negroes and forty-nine Carpetbaggers and -Scalawags; it wrote a provision into the Louisiana Constitution that -“all children ... shall be admitted to the public schools in common, -without distinction of race, color, or previous condition. There -shall be no separate schools or institutions of learning established -exclusively for any race by the State of Louisiana.” But this -language in a coerced State Constitution was ignored by the people. -In 1870, the Superintendent of Public Instruction was to complain -that the constitutional provision “excites a determined opposition -on the part of many who would otherwise cooperate in the opening of -schools and in the raising of funds for their support.” As the years -passed, Louisiana established a system of racially separate public -schools, in accordance with the demonstrable understanding of the -Fourteenth Amendment elsewhere in the Union, and a freely chosen -constitutional convention in 1898 made segregation mandatory. - -Florida and Louisiana have been here singled out, because -the confused record in the two States offers the best -opportunity--indeed, the only opportunity--for a case to be made -that _any_ of the States ever understood or contemplated that the -Fourteenth Amendment might in any fashion serve to prohibit the -operation of racially separate schools. If evidence cannot be adduced -here, it cannot be adduced anywhere. And this poor, scanty record of -actions taken under duress--and later repudiated under freedom--is -the best that hard-laboring historians can produce. - -What of the other States? In twenty-three other States, positive -evidence is available that neither the State conventions nor the -State legislatures at any time ever understood or contemplated that -the Fourteenth Amendment prohibited them from establishing racially -separate schools. - -Look at the record, _first in terms of States outside the South_: - -_California_ took no action on the Fourteenth Amendment, but it -established racially separate schools by statute in 1870, two years -after the amendment had been ratified. - -_Delaware_ refused to ratify the amendment, and made no provision -for Negro education of any sort until 1881. Then separate Negro -schools were established, and Delaware’s constitution of 1897 -made segregation mandatory. How can it be contended that Delaware -understood the Fourteenth Amendment to prohibit separate schools? - -_Illinois_ refused to admit Negroes to any schools at the time of -its ratification of the Fourteenth Amendment. It was not until five -years later that a general school law admitted them to educational -facilities--some segregated, others integrated. Segregated schools -persisted at least until 1884, when the Supreme Court of Illinois -acknowledged the operation of segregated institutions, and ruled them -in violation of a State law that had been passed in the interim. But -no court or legislature in Illinois ever asserted that such schools -were in violation of the Fourteenth Amendment. - -_Indiana_ ratified the Fourteenth Amendment in June 1867, following -a message from Governor Morton specifically advocating “the -establishment of separate schools,” because “I could not recommend -that white and colored children be placed together in the same -schools.” And it was not until 1949--eighty-one years after adoption -of the Fourteenth Amendment--that Indiana formally abandoned -segregation in its schools. - -_New Jersey_ was another Northern State in which racially separate -schools were continued long after adoption of the Fourteenth -Amendment. It was not until 1881 that the legislature prohibited -their operation, but when this statute was construed three years -later, no mention of any sort was made of the Fourteenth Amendment. - -_New York._ What of New York? The State ratified the Fourteenth in -January 1867, and later the same year convened a constitutional -convention at which a ringing declaration was adopted in favor -of civil rights--but there was not a word in this declaration -in support of racially integrated schools. On the contrary, -separate schools were specifically permitted in New York until -1900--thirty-two years after the Fourteenth Amendment became part -of the Constitution. Can it be seriously contended that New York -understood or contemplated that the amendment in and of itself would -abolish school segregation? - -To bring these Northern examples to an end, consider Ohio, -Pennsylvania, and West Virginia. _Ohio_ had racially separate schools -at the time it ratified in 1867; such schools specifically were -continued by a statute of 1874, and the system was not discarded by -State law until 1887. _Pennsylvania_ also had a system of segregated -schools at the time of its ratification in 1867; the legislature -continued the system by statute in 1869; the system was not abolished -until 1881. _West Virginia’s_ legislature ratified the Fourteenth -on January 16, 1867. On February 27, precisely six weeks later, the -same legislature adopted a statute providing that “white and colored -persons shall not be taught in the same schools.” What is one to say -of West Virginia’s understanding of the meaning of the Fourteenth -Amendment? - -Action of the Southern States was entirely in accord with the -understanding thus demonstrated by their recent enemies in the North. -To summarize these briefly: - -_Alabama_ ratified under coercion on July 13, 1868; but less than a -month later, on August 11, 1868, the same legislature--even though it -was dominated by Negroes and Carpetbaggers--enacted a law prohibiting -mixed schools “unless it be by the unanimous consent of the parents -and guardians of such children.” - -_Arkansas_ ratified on April 6, 1868. The same military legislature -on July 23, 1868, passed a statute directing the State Board of -Education to “make the necessary provisions for establishing separate -schools for white and colored children.” - -_Georgia_ ratified twice, once in 1868 and again in 1870. The latter -legislature still was under Reconstruction rule; a majority of both -houses were Republicans. But even this legislature, immediately after -its renewed ratification of 1870, adopted a school act providing that -“the children of the white and colored races shall not be taught -together in any sub-district of the State.” - -_Kentucky_, not subject to military reconstruction, rejected the -Fourteenth in January 1867. The same legislature provided for -racially separate schools, and the State’s constitution of 1891 -required them. - -_Mississippi’s_ legislature, dominated by Republicans and Negroes, -ratified the Amendment in 1870 and simultaneously provided for a -public school system. It was a segregated system, though the law did -not require this specifically. Segregation was made mandatory in the -schools in 1878. - -_North Carolina_ ratified in July 1868. The following winter saw -enactment of a statute directing local school authorities to -establish “separate schools for the instruction of children and youth -of each race.” - -_South Carolina’s_ Reconstruction constitutional convention -(seventy-six Negroes, forty-eight Carpetbaggers) directed the -forthcoming State legislature to establish a public school system -free to all children “without regard to race or color,” but the -Reconstruction legislature (only twenty-two of its 155 members could -read or write) paid no attention to the provision. The Governor -was a brevet brigadier general from Maine, Robert K. Scott. In his -Inaugural Address he told the assembled illiterate Negroes and white -legislators quite frankly that he deemed racial separation in the -schools “of the greatest importance to all classes of our people.” -Listen to what this Union Governor of South Carolina said, on the -very day after the South Carolina legislature had ratified the -Fourteenth Amendment: - - While the moralist and philanthropist cheerfully recognizes the - fact that “God hath made of one blood all nations of men” yet the - statesman in legislating for a political society that embraces two - distinct, and in some measure, antagonistic races, in the great - body of its electors, must, as far as the law of equal rights - will permit, take cognizance of existing prejudices among both. - In school districts, where the white children may be preponderate - in numbers, the colored children may be oppressed, or partially - excluded from the schools, while the same result may accrue to - the whites, in those districts where colored children are in - the majority, _unless they shall be separated by law as herein - recommended_. [Emphasis _supplied_.] - -South Carolina’s legislature adopted Governor Scott’s recommendation. -A Massachusetts Negro became State Superintendent of Public -Instruction; and he presided over the establishment of a system of -segregated schools. - -A reconstructed legislature in _Texas_ ratified the Fourteenth -Amendment in February 1870. The same legislature provided for public -schools to be operated by trustees who “may make any separation of -the students or schools necessary to insure success.” Segregated -schools were made mandatory in Texas by the Constitution of 1876. - -Finally, _Virginia_. The Old Dominion’s first legislature under the -Reconstruction Constitution of 1869 ratified the Fourteenth and -Fifteenth Amendments to the Federal Constitution, and then adjourned -until the State’s representatives were readmitted to Congress. Then -the same legislature reconvened and promptly enacted a statute -providing for a system of free schools under a requirement that -“white and colored persons shall not be taught in the same schools, -but in separate schools.” - -What does all this add up to? Simply this: There were thirty-seven -States whose “understandings” and “contemplations” of the Fourteenth -Amendment at the time of its ratification must be sought. In -fourteen of these States (twelve non-Southern States plus Florida -and Louisiana), no substantial evidence can be adduced one way or -another. In twenty-three of these States (fourteen non-Southern -States and nine Southern States), positive evidence exists to show -that ratification of the Fourteenth Amendment was never thought -to prohibit the operation of racially separate schools. The very -legislative bodies that ratified the amendment simultaneously -provided for separate schools. In not a single one of the -thirty-seven States is there any substantial evidence--or even -any flimsy evidence--to show affirmatively that the legislatures -that considered the Fourteenth Amendment believed, understood, or -contemplated that the amendment in and of itself, would prohibit -school segregation. - -_3. Decisions of State and Federal courts in the period immediately -following adoption of the amendment._ Confronting this overwhelming -evidence, counsel for the Negro plaintiffs desperately attempted to -establish what might be called a conspiracy theory, so far as the -Southern States were concerned: These States, it was suggested, knew -all along that the Fourteenth Amendment was intended to prohibit them -from maintaining separate schools, but they conspired to deceive -the rest of the nation until they were formally readmitted to the -Union and Reconstruction had ended. This theory does not justify -even the contempt with which defense counsel brushed it aside. -The plain and visible fact is that racially separate schools were -everywhere recognized and accepted as fully in compliance with the -new constitutional provisions. It is not necessary to seek evidence -of this recognition in Southern States alone, nor to rely upon the -interpretation that “politicians” may have put upon the amendment -here and there. Let us turn from Congress and the State legislatures, -and see what the courts said about the meaning of the Fourteenth -Amendment in the years immediately following its ratification in 1868. - -The clock should be turned back first to 1849, nineteen years -before the ratification of the amendment, when Sarah C. Roberts, a -five-year-old Negro girl, brought suit against the City of Boston -(59 Mass. 198) in the Supreme Judicial Court of Massachusetts. -Boston then had two primary schools exclusively for Negroes, one -on Belknap Street, in the Eighth School District, the other on -Sun Court Street, in the Second. Negroes made up one sixty-second -of Boston’s population, but among this one sixty-second was Sarah -Roberts, a resident of the Sixth District on Andover Street. She -wanted to attend the white school nearest her. Charles Sumner and -R. Morris, Jr., brought suit in her behalf, contending as many -others were to contend in subsequent years that Sarah had a right -to attend her neighborhood school, and that Boston had no right to -make classification by race. The suit came on to be heard before -Chief Justice Lemuel Shaw and others. This, to repeat, was many years -prior to the Fourteenth Amendment, but the question put to the court -was to be the question argued many times thereafter: What are the -“privileges” of the individual citizens? Where do the powers of the -state end in terms of a racial classification for schoolchildren? -This is Boston, 1849: - - The great principle, advanced by the learned and eloquent advocate - of the plaintiff, is, that by the constitution and laws of - Massachusetts, all persons without distinction of age or sex, birth - or color, origin or condition, are equal before the law. This, as a - broad general principle, such as ought to appear in a declaration - of rights, is perfectly sound; it is not only expressed in terms, - but pervades and animates the whole spirit of our constitution of - free government. But, when this great principle comes to be applied - to the actual and various conditions of persons in society, it will - not warrant the assertion that men and women are legally clothed - with the same civil and political powers, and that children and - adults are legally to have the same functions and be subject to - the same treatment, but only that the rights of all, as they are - settled and regulated by law, are equally entitled to the paternal - consideration and protection of the law, for their maintenance - and security. What those rights are, to which individuals, in the - infinite variety of circumstances by which they are surrounded in - society, are entitled, must depend on the laws adapted to their - respective relations and conditions. - - Conceding, therefore, in the fullest manner, that colored persons, - the descendants of Africans, are entitled by law, in this - commonwealth, to equal rights, constitutional and political, civil - and social, the question then arises, whether the regulation in - question, which provides separate schools for colored children, is - a violation of any of these rights. - -The Massachusetts court faced the issue squarely, and concluded that -separate schools did no violence to any civil right or privilege held -by the colored children. The court’s inquiry was directed toward a -single point: Was this a reasonable classification? Had the school -trustees abused their responsibility? After great deliberation, -the trustees had concluded that the good of both white and colored -children would be promoted by separate primary schools. Said the -court: “We can perceive no ground to doubt that this is the honest -result of their experience and judgment.” It was urged that such -separation tends to deepen and perpetuate the odious distinction of -caste, founded in a deep-rooted prejudice in public opinion. Said the -Massachusetts court: - - This prejudice, if it exists, is not created by law, and probably - cannot be changed by law. Whether this distinction and prejudice, - existing in the opinion and feelings of the community, would not be - as effectually fostered by compelling colored and white children - to associate together in the same schools, may well be doubted; at - all events, it is a fair and proper question for the committee to - consider and decide upon, having in view the best interests of both - classes of children placed under their superintendence.... - -The Massachusetts court refused to say that the trustees’ decision in -behalf of racially separate schools was capricious or arbitrary; such -a decision was within their realistic prerogatives, and it denied -no child his “civil rights.” The court spoke long before the Civil -War, long before there was a Fourteenth Amendment; but the universal -understanding of the framers of the Fourteenth Amendment was that the -amendment neither created nor secured any “new” rights of citizens of -the United States--it merely defined and secured, for the emancipated -Negro, the civil rights enjoyed by white citizens all along. Serious -students of the subject may wish to confirm this from _II Am. Jur. -Const. Laws_ (Sect. 255, pages 987-97). The Massachusetts opinion -has great weight in establishing, as the formal expression of an -abolitionist Northern State, that “civil rights” did not include any -right to attend racially integrated schools. If this is of merely -academic importance today, the court’s opinion in _Roberts_ v. -_Boston_ is significant in determining what the framers and adopters -of the Fourteenth Amendment in 1866 understood the amendment to mean. -They did not mean that it would afford the Negro citizen any more -identity of access to public facilities than the Massachusetts court -was willing to agree to in 1849. - -Now, let us leap ahead. The Fourteenth Amendment was proposed in -1866 and declared ratified in 1868; throughout this period, such -radical abolitionists as Sumner and Seward were crying for a broad -interpretation of the amendment. In Ohio, during the December term -of the State Supreme Court in 1871, a suit came on to be heard -from William Garnes against John W. McCann and other members of -the school board in Franklin County. _This is Ohio._ Its Senators -Wade and Sherman cast their votes in the thirty-ninth Congress in -favor of the amendment. The State court surely was familiar with -their views. Garnes’ complaint was that under State laws of 1853 -and 1864 his three children had been denied admission to schools -in nearby Norwich; instead, his children were required to attend a -Negro school in Hilliard. He brought suit, based entirely on the -Fourteenth Amendment, contending that the amendment prohibited Ohio -from adopting any school law that permitted or required segregation. -His was the first direct test of the intention of the framers and -adopters. - -The Ohio court (21 Ohio State 198) gave the petitioner’s argument -scant attention. On the theory that Garnes, as a citizen of the -United States, might have been denied certain privileges and -immunities, the court observed briefly that the amendment went only -to “such privileges or immunities as are derived from, or recognized -by, the Constitution of the United States.” Any broader construction -would open a field of limitless conjecture “and might work such -limitations of the power of the States to manage and regulate their -local institutions and affairs _as were never contemplated by the -Amendment_.” [Emphasis added.] - -No such construction ever had been intended. The privileges -and immunities of a school system “are derived solely from the -constitution and laws of the State.” If Ohio were to abolish all -public schools, it scarcely could be claimed that a “citizen of the -United States” could compel Ohio to re-establish them. This being -so, Garnes could demand no more than equal protection under the laws -of Ohio. And this had not been denied him. His children were assured -their “equal proportion of the school fund.” (The court’s assertion -on this score is important to establish the point that the doctrine -of “separate but equal” arose at the very outset of litigation on -school segregation.) This was all Garnes was entitled to demand. -“A classification of the youth of the State for school purposes, -upon any basis which does not exclude either class from equal school -advantages, is no infringement of the equal rights of citizens -secured by the constitution of the State.” And the Fourteenth -Amendment, at most, affords colored citizens only an additional -guaranty of rights already secured to them by the State Constitution. - -In brief, the plaintiff Garnes could not validly complain that the -privileges of his children were abridged, or that equal protection of -the law had been denied them. “Equality of rights does not involve -the necessity of educating white and colored persons in the same -school, any more than it does that of educating children of both -sexes in the same school.” And the court added: - - Any classification which preserves substantially equal school - advantages is not prohibited by either the State or Federal - Constitution, nor would it contravene the provisions of either. - There is, then, no ground upon which the plaintiff can claim that - his rights under the Fourteenth Amendment have been infringed. - -This view of the Fourteenth Amendment, stated by the Supreme Court -of Ohio in 1871, was accepted the following year by the United -States Circuit Court for the Southern District of Ohio. In _United -States_ v. _Buntin_ (10 Fed. 730), Circuit Judge Baxter summarized -the _Garnes_ case as a holding that segregation is “within the -constitutional discretion of the legislature, and that the separate -education of the whites and blacks ... is no wrong to either.” Said -the Federal Circuit Court in Ohio: “I concur in and adopt this -decision as a correct exposition of the Constitution.” - -The same question twice presented in Ohio cropped up again in 1872 -in Nevada. Surely Nevada was no Southern State, nor could the views -of its State Supreme Court have been tainted by any Confederate -conspiracy. Both of Nevada’s Senators, Nye and Stewart, had voted in -1866 in favor of the amendment. But in _Stoutmeyer_ v. _Duffy_ (7 -Nev. 342), the State court found nothing whatever in the Fourteenth -Amendment to compel the admission of a seven-year-old Negro boy -to the white schools of Ormsby County. His denial was a violation -of State law, said the court, but not of Federal law. A concurring -justice thought it “utterly untenable” that segregated schools, as -such, should be held a violation of the Fourteenth Amendment. - -In January 1874, the same question arose in California. It cannot be -suggested seriously that the Supreme Court of California in _Ward_ -v. _Flood_ (48 Calif. 36) was then acting in some joint conspiracy -with the invidious Alabamans. Young Mary Frances Ward demanded -admission to the white Broadway Grammar School in San Francisco; -Principal Noah F. Flood, acting under State law, declined. Was his -action a violation of the Fourteenth Amendment? Plainly not, said -the California court. In the mere fact that the races are separated -in the public schools “there is certainly to be found no violation -of the constitutional rights of the one race more than of the other, -and we see none of either, for each, though separated from the other, -is to be educated upon equal terms with that other, and both at the -common public expense.” - -Eleven months later, in November 1874, the same question came up in -Indiana. Who would regard Indiana as a Southern State? The case was -_Cory_ v. _Carter_ (48 Ind. 327). Here a Negro resident of Lawrence -township in Marion County demanded admission of his grandchildren -to the nearest local schools. An act of Indiana in May 1869, nearly -a year after ratification of the Fourteenth Amendment, required -their education at nearby Negro schools. Was the State act, as the -petitioner complained, in violation of the new amendment to the -Constitution? Not at all, said the Supreme Court of Indiana. The new -Fourteenth Amendment was not intended to prohibit to the State the -power of operating separate schools for white and Negro children. -This was a question of “domestic policy,” to be settled by State law: - - In other words, the placing of the white children of the State in - one class and the Negro children of the State in another class - and requiring these classes to be taught separately, provision - being made for their education in the same branches, with capable - teachers, and to the extent of their pro rata share in the school - revenue, does not amount to a denial of equal privileges to either, - or conflict with the open character of the system required by the - Constitution. The system would be equally open to all. The tuition - would be free. The privileges of the schools would be denied to - none. The white children go to one school, or to certain of the - schools in the system of common schools. The colored children go to - another school, or to certain others of the schools in the system - of common schools.... If there be cause of complaint, the white - class has as much, if not greater cause than the colored class, for - the latter class receive their full share of the school revenue, - although none of it may have been contributed by such class.... - -And in a telling section of its opinion, the Indiana court went -on to make the point that Congress itself had fixed the spirit -and meaning of the Fourteenth Amendment by adopting legislation -requiring racially segregated schools in the District of Columbia. -The court called attention to the dates of such legislation: July -23, 1866; July 28, 1866; March 3, 1873. These acts of Congress were -contemporaneous with adoption of the Fourteenth Amendment. It seemed -to the Indiana court unthinkable that the Congress should have fixed -some standard for the States less than that required of the central -government, and surely Congress itself, having framed the amendment, -knew what was intended by the amendment: “This legislation of -Congress continues in force ... as a legislative construction of the -Fourteenth Amendment, and as a legislative declaration of what was -thought to be lawful, proper, and expedient under such amendment, by -the same body that proposed such amendment to the States for their -approval and ratification.” - -Now, to maintain the chronology, consider one case from a Southern -State: _Arnold Bertonneau_ v. _Board of Directors of_ [New Orleans] -_City Schools_ (3 Woods 177, 3 Fed. Cases 294, Case No. 1,361). This -was decided by a Federal Circuit Court of Appeals in November 1878. -The Fourteenth Amendment was then ten years old. The question, -brought by the Negro father of two boys, seven and nine years old, -was whether under the Fourteenth Amendment they were entitled -to admission to a white school three blocks from their home on -Rampart Street. A Negro school was also conveniently available. The -Reconstruction Constitution of Louisiana then carried the provision, -earlier quoted, that no separate schools should be established for -any race under State law. But the Federal court had no concern for -the State Constitution. Its sole concern was with the United States -Constitution, and Circuit Judge William B. Woods found no violation -of it in the schools of the Vieux Carré. Woods, incidentally, was an -Ohioan; he had been a general in the Union Army; in 1880 he was to be -named by Hayes to the U.S. Supreme Court. Here he said: - - Both races are treated precisely alike. White children and colored - children are compelled to attend different schools. That is all.... - Any classification which preserves substantially equal school - advantage does not impair any rights, and is not prohibited by - the Constitution of the United States. Equality of right does not - necessarily imply identity of right. - -One of the most frequently quoted court cases of this period arose in -New York in 1883 (_People, ex. rel. King_ v. _Gallagher_, 93 N. Y. -438). It involved a mandamus petition brought by a twelve-year-old -Negro girl in Brooklyn to compel a local school principal, Gallagher, -to admit her to his school despite a State law of 1864 permitting -Brooklyn to maintain racially separate schools. Her suit was based -squarely upon the Fourteenth Amendment. The Court of Appeals of New -York wrote a long and serious opinion in dismissing her petition -as groundless. The history of the amendment, said the court, “is -familiar to all.” (The statement bears special emphasis: One of -New York’s Senators at the time of the court’s opinion was Roscoe -Conkling, a leading lawyer and abolitionist who had been tendered -the office of Chief Justice. New York’s two Senators at the time -the amendment was submitted in 1866, Harris and Morgan, both had -supported the resolution. When the court said the history of the -Fourteenth was “familiar to all,” it doubtless had in mind the -opinions and interpretations of the State’s own Senators.) In the -view of the court, the object of the amendment was to secure for the -Negro people civil rights equal to those enjoyed by white persons. -But the Negroes were not to have any greater or more extensive -civil rights than others. As citizens of the United States, their -“privileges and immunities” were to be identically protected. As -citizens of the individual States, they were to have whatever equal -State rights might be defined in those States--and the privilege -of receiving an education at the expense of the State, being -created and conferred solely by the law of the State and subject to -its discretionary regulation, was a privilege plainly within the -regulation of the State. So far as “privileges and immunities” were -concerned, the plaintiff had nothing to complain about. But the court -went on to add some thoughtful comments on the general subject of -equal protection, and these merit a careful reading. - - But we are of the opinion that our decision can also be sustained - upon another ground, and one which will be equally satisfactory - as affording a practical solution of the questions involved. It - is believed that this provision will be given its full scope and - effect when it is so construed as to secure to all citizens, - wherever domiciled, equal protection under the laws and the - enjoyment of those privileges which belong, as of right, to each - individual citizen. This right, as affected by the questions in - this case in its fullest sense, is the privilege of obtaining an - education under the same advantages and with equal facilities for - its acquisition with those enjoyed by any other individual. It is - not believed that these provisions were intended to regulate or - interfere with the social standing or privileges of the citizen, or - to have any other effect than to give to all, without respect to - color, age or sex, the same legal rights and the uniform protection - of the same laws. - - In the nature of things there must be many social distinctions - and privileges remaining unregulated by law and left within the - control of the individual citizens, as being beyond the reach of - the legislative functions of government to organize or control. - The attempt to enforce social intimacy and intercourse between the - races, by legal enactments, would probably tend only to embitter - them, and produce an evil instead of a good result. [Citing - _Roberts_ v. _City of Boston_.] - - As to whether such intercourse shall ever occur must eventually - depend upon the operation of natural laws and the merits of - individuals, and can exist and be enjoyed only by the voluntary - consent of the persons between whom such relations may arise, but - this end can neither be accomplished nor promoted by laws which - conflict with the general sentiment of the community upon whom - they are designed to operate. When the government, therefore, - has secured to each of its citizens equal rights before the law - and equal opportunities for improvement and progress, it has - accomplished the end for which it is organized and performed all of - the functions respecting social advantages with which it is endowed. - -The New York court went on to analyze the “startling results” -that would follow from the assertion that racial separation was -intended to be prohibited by the Fourteenth Amendment. The same -line of argument would prohibit classifications by sex or age, and -surely this was not intended. No. Plainly, said the court, the -Brooklyn school authorities had the power, “in the best interests -of education, to cause different races and nationalities, whose -requirements are manifestly different, to be educated in separate -places.” The court added: - - We cannot see why the establishment of separate institutions - for the education and benefit of different races should be held - any more to imply the inferiority of one race than that of the - other, and no ground for such an implication exists in the act of - discrimination itself. If it could be shown that the accommodations - afforded to one race were inferior to those enjoyed by another, - some advance might be made in the argument, but until that is - established, no basis is laid for a claim that the privileges of - the respective races are not equal.... - - A natural distinction exists between those races which was not - created, neither can it be abrogated, by law, and legislation which - recognizes this distinction and provides for the peculiar wants or - conditions of the particular race can in no just sense be called - a discrimination against such race or an abridgment of its civil - rights. The implication that the Congress of 1866, and the New York - State legislature of the same year, sitting during the very throes - of our civil war, who were respectively the authors of legislation - providing for the separate education of the two races, were thereby - guilty of unfriendly discrimination against the colored race, will - be received with surprise by most people and with conviction by - none.... - -And the New York court went on to make the same point earlier made in -Indiana, that “the highest authority for the interpretation of this -amendment is afforded by the action of those sessions of Congress -which not only immediately preceded, but were also contemporaneous -with, the adoption of the amendment in question.” If Congress could -establish schools exclusively for Negroes, as it repeatedly had -done, no good reason could be suggested why a greater restriction -should apply to the States. “If regard be had to that established -rule for the construction of statutes and constitutional enactments -which require courts, in giving them effect, to regard the intent of -the law-making power, it is difficult to see why the considerations -suggested are not controlling upon the question under discussion.” - -That was New York speaking, only fifteen years after ratification of -the amendment, in 1883. Did _King_ v. _Gallagher_ say nothing at all, -in 1954, to the Supreme Court of the United States? Was this opinion -not directly responsive to the court’s question of whether the States -understood or contemplated that the Fourteenth Amendment was intended -to prohibit separate schools? - -To complete the record of school decisions directly in point, prior -to the Supreme Court’s opinion of 1896 in _Plessy_ v. _Ferguson_, -one final case should be mentioned. This was _Lehew_ v. _Brummell_ -(15 S.W. 765), decided by the Supreme Court of Missouri in March -1891. Both the Missouri Constitution and a State act of 1887 then -required racially separate schools. Five Negro children of Grundy -County attacked the requirement as violative of both the “privileges -and immunities” and “equal protection” provisions of the Fourteenth -Amendment. The Missouri court rejected both contentions. “The right -of children to attend the public schools, and of parents to send -their children to them, is not a privilege or immunity belonging -to a citizen of the United States as such. It is a right created -by the State, and a right belonging to citizens of the State as -such.” On the second point, separation of pupils by race was not an -unreasonable or arbitrary classification, for - - color carries with it natural race peculiarities, which furnish - the reason for the classification. There are differences in races, - and between individuals of the same race, not created by human - laws, some of which can never be eradicated. These differences - create different social relations, recognized by all well-ordered - governments. If we cast aside chimerical theories and look to - practical results, it seems to us it must be conceded that separate - schools for colored children is a regulation to their great - advantage.... The fact that the two races are separated for the - purpose of receiving instruction deprives neither of any rights. It - is a reasonable regulation of the exercise of the right. - -Mention of the _Lehew_ case in Missouri brings this chronology -of judicial pronouncements on racially separate schools to the -Supreme Court’s famous statement in _Plessy_. With that landmark in -sight, the citizen seeking to learn what the framers intended the -Fourteenth Amendment to accomplish should pause to read two other -monumental Supreme Court opinions--the _Slaughter-House Cases_ of -1873 (16 Wallace 36) and the _Civil Rights Cases_ of 1883 (109 U. -S. 3). They do not deal directly with a State’s power to operate -racially separate public schools, but they do speak eloquently of the -whole meaning of the Reconstruction amendments as that meaning was -understood by those closest to it. - -In the _Slaughter-House Cases_, the court dealt with an act of -Louisiana creating a single company to have exclusive responsibility -for meat-processing in New Orleans. The law was intended to promote -health and sanitation (or so the State insisted), but local butchers -attacked it as an invasion of their rights under the Fourteenth -Amendment. The Supreme Court would not agree. No right to be a -butcher in Louisiana inured to a “citizen of the United States” prior -to adoption of the Amendment, and the amendment gave him none. Such -rights, privileges, and immunities remained within the jurisdiction -of the States after 1868, as surely as they had rested with the -States before 1868. In terms of the basic structure of the Union, -the War of 1861-65 had changed nothing. The Fourteenth Amendment, -though it laid certain prohibitions upon the States and vested in -the Congress power to enforce those prohibitions by appropriate -legislation, never had been intended “to bring within the power of -Congress the entire domain of civil rights heretofore belonging -exclusively to the States.” Any such interpretation would radically -change “the whole theory of the relations of the State and Federal -governments to each other, and of both these governments to the -people.” No such results, said the court, “_were intended by the -Congress which proposed these amendments, nor by the legislatures -which ratified them._” The Fourteenth Amendment had then been in -effect only five years. Every member of the court was familiar with -the circumstances surrounding its submission and ratification. - -On March 1, 1875, Congress enacted a truly sweeping Civil Rights -Act. The first section asserted, affirmatively, that “all persons -within the jurisdiction of the United States shall be entitled to -the full and equal enjoyment of ... inns, public conveyances on -land or water, theatres, and other like places of amusement.” Five -cases testing the law came together before the Supreme Court for -decision in October 1883. Harlan alone dissented from an opinion of -the court declaring that the act went beyond the boundaries of the -power vested in the Congress by the fifth section of the Fourteenth -Amendment. What was this power? In the view of the majority, it -boiled down simply to this--a power to enforce. To enforce what? To -enforce the prohibitions laid upon the States--that is, to adopt -“corrective legislation such as may be necessary and proper for -counteracting such laws as the States may adopt or enforce and which, -_by the amendment_, they are prohibited from making or enforcing.” -[Emphasis added.] The Civil Rights Act did not vest in the Congress -any power to adopt general legislation dealing with the rights of -the citizens, or to establish any code of municipal law. Any such -assumption, said the court, “is certainly unsound.” The intention of -the Fourteenth Amendment was to prohibit the States from denying to -any person “those fundamental rights which are the essence of civil -freedom, namely, the right to make and enforce contracts, to sue, -be parties, give evidence, and to inherit, purchase, lease, sell, -and convey property.” Whenever a State attempted by its own action -to deny a Negro such rights as these, a State would be in violation -of the Constitution; but until a State transgressed upon some right -_secured by the amendment_, a State could do as it wished. Was a -right to attend an integrated public school such a right? The _Civil -Rights Cases_ do not suggest it for a moment. On the contrary, the -construction placed upon the Fourteenth Amendment by the court -suggests precisely the opposite. - -Whatever doubts might have been lingering in any quarter were put -at rest by the Supreme Court’s opinion of May 1896 in _Plessy_ v. -_Ferguson_. The Fourteenth Amendment had been in operation nearly -twenty-eight years. Plessy, one-eighth Negro, challenged a Louisiana -State law requiring separate facilities for whites and Negroes on -railway lines; his principal contention was that he was thereby -denied equal protection of the laws. With only Harlan dissenting -(Brewer did not participate), the Supreme Court expounded in clear -and simple terms the “understanding” and “contemplation” of the -Fourteenth Amendment: - - The object of the amendment was undoubtedly to enforce the absolute - equality of the two races before the law, but in the nature of - things it could not have been intended to abolish distinctions - based upon color, or to enforce social, as distinguished from - political equality, or a commingling of the two races upon terms - unsatisfactory to either. Laws permitting, and even requiring, - their separation in places where they are liable to be brought into - contact do not necessarily imply the inferiority of either race to - the other, and have generally, if not universally, been recognized - as within the competency of the State legislatures in the exercise - of their police power. _The most common instance of this is - connected with the establishment of separate schools for white and - colored children, which has been held to be a valid exercise of - the legislative power even by courts of States where the political - rights of the colored race have been longest and most earnestly - enforced._ [Emphasis supplied.] - -What was the primary question the United States Supreme Court asked -in the _Brown_ case in June 1953? This was the question: Whether the -Congress that submitted the Fourteenth Amendment, and the States -that ratified it, understood or contemplated that the amendment was -intended to abolish segregation in public schools. - -We have seen that the Congress surely did not understand or -contemplate this: The Congress itself provided for racially -separate schools in the District of Columbia. Over a long period of -years following adoption of the amendment, States both North and -South continued to operate separate schools, without protest or -interference of any sort from Congress. - -Just as plainly, the States that ratified the amendment did not -understand or contemplate that it was intended to abolish segregation -in schools: One after another, they provided for racially separate -schools in the same breath with which they ratified the amendment. - -And if one seeks in the judicial pronouncements of the day for -independent evidence of what the Congress and the States understood -and contemplated the amendment to mean the evidence is overwhelming: -The power of the States to maintain separate schools was “generally, -if not universally” held to be completely in accord with the -Fourteenth Amendment. The seven justices who united in _Plessy_ were -all mature men at the time the amendment became effective in 1868. -Edward D. White of Louisiana, the youngest, was then twenty-three, -Brown of Michigan was thirty-two, Fuller of Illinois thirty-five, -Field of California fifty-two, Gray of Massachusetts forty, Shiras -of Pennsylvania, thirty-six, and Peckham of New York thirty. From -a standpoint of constitutional law, who could have known the -understanding and contemplation of the amendment better than they? -They grew up with it. And in 1896, when they handed down the Plessy -opinion, they were men of fifty-one to eighty, in a position to look -back maturely upon twenty-eight years of political life under the -Fourteenth Amendment. - - -The other two questions of a general nature posed by the Supreme -Court in June 1953 may be dealt with more briefly. Much of the ground -has been covered already. These were: - - _Question 2: If neither the Congress in submitting nor the States - in ratifying the Fourteenth Amendment understood that compliance - with it would require the immediate abolition of segregation in - public schools, was it nevertheless the understanding of the - framers of the amendment_ - - _(a) that future Congresses might, in the exercise of their power - under Section 5 of the amendment, abolish such segregation, or_ - - _(b) that it would be within the judicial power, in the light of - future conditions, to construe the amendment as abolishing such - segregation of its own force?_ - - _Question 3: On the assumption that the answers to Questions 2 (a) - and (b) do not dispose of the issue, is it within the judicial - power, in construing the amendment, to abolish segregation in - public schools?_ - -Question 2 (a) may best be answered by studying the Fourteenth -Amendment in terms of political power. What is the Fourteenth? -Obviously, it is first of all a prohibition upon the States. It -is not primarily a grant of power to the Congress. Its thrust is -negative: The States shall not make; the States shall not enforce; -the States shall not abridge; the States shall not deprive; the -States shall not deny. Section 3 carries an incidental delegation -of power to the Congress, authorizing the removal of political -disabilities imposed upon Confederate soldiers, and Section 5 vests -in the Congress a power “to enforce, by appropriate legislation, the -provisions of this article.” - -Would an act of Congress prohibiting the States from maintaining -racially separate schools be “appropriate legislation, enforcing -the provisions of this article”? The framers of the Fourteenth -Amendment did not think so. They did not regard the right to attend a -particular school as a “civil right.” Well after the amendment became -operative, Sumner and other abolitionist leaders in the Congress -several times introduced legislation having this end; twice they got -such a bill through the Senate (1872 and 1874), on tie votes broken -by the Vice-President, but they were never able to get a bill through -the House. And in the Civil Rights Act of 1875, an effort to prohibit -racially separate schools was defeated decisively. - -The power vested in Congress in the fifth section is no general grant -of power. It is limited to legislation appropriate to enforcing the -provisions “of this article.” And until it can be shown that one of -the provisions “of this article” was intended to prohibit to the -States the power to maintain racially separate schools, it cannot be -shown that Congress appropriately could enact legislation having that -end. - -No provision of the Fourteenth Amendment imposes such a prohibition -on the States. Therefore, no act of the Congress validly could seek -to enforce such a prohibition. - -And surely it is all the more evident, to get at Questions 2 (b) -and 3, that nothing in the Fourteenth Amendment, or in any other -provision of the Constitution or act of Congress, ever was intended -to give the Supreme Court the power to abolish segregation in public -schools by its own fiat. If the power to accomplish this end rested -in Federal authority at all, it rested in the hands of the Congress. -The court might decide whether an act of the Congress prohibiting -such schools in the States were “appropriate legislation” to enforce -provisions of the Fourteenth Amendment, but the court has no -legislative authority of any sort. As the court itself said in the -_Slaughter-House Cases_, the amendment was not intended to make the -court “a perpetual censor upon all legislation of the States, on the -civil rights of their own citizens, with authority to nullify such as -it did not approve as consistent with those rights as they existed at -the time of the adoption of this amendment.” - -Question 3, it will be noticed, goes beyond Question 2 (b). In -Question 2 (b), the court was still concerned with the intention of -the framers of the Fourteenth Amendment: Did the framers understand -in 1866 that some day the court, in the light of future conditions, -could construe the amendment to abolish school segregation of its own -force? But in Question 3, the framers are abandoned: Is it within -the judicial power _today_, the court inquired, without regard to -history, for the court itself to abolish school segregation by -placing a new construction on the amendment? - -In the brief they filed in response to the court’s inquiries, -attorneys for the Southern States said this: - - Certainly judicial power exists if the only question be whether - this court is empowered to make an enforceable decision. But to - interpret the Fourteenth Amendment as authority for the judicial - abolition of school segregation would be an invasion of the - legislative power and an exact reversal of the intent of the - framers of the amendment. - -Yes, the court has power. Hughes’ cynical remark contains grim -truth: Judges are restrained only by the Constitution, and the -Constitution is what the judges say it is. But if the ethical -tradition of our society teaches us one thing (wholly apart from -the judicial tradition), it is that might and right ought always to -be carefully distinguished. And on no nine men in the world does -this responsibility rest more heavily than on the nine members of -the court. Defense counsel in the school cases quoted Mr. Justice -Cardozo: “Judges have, of course, the power, though not the right, -to ignore the mandate of a statute, and render judgment in despite -of it. They have the power, though not the right, to travel beyond -the walls of the interstices, the bounds set to judicial innovation -by precedent and custom. None the less, by that abuse of power, they -violate the law.” - -Judges are not supposed to violate the law, to constitute themselves -a super-legislature, to plunge beyond the bounds of the Constitution -itself. And no body of critics has said this more frequently than the -judges themselves. - -In the famous case of _United States_ v. _Butler_, (297 U. S. 1), -holding that the Agricultural Adjustment Act of 1935 exceeded the -power vested in the Congress to regulate commerce, the Supreme -Court divided violently--but both the majority and the minority, in -their discussions of judicial power and responsibility, made the -same points. “The only power the court has,” said the majority, “if -such it may be called, is the power of judgment. This court neither -approves nor condemns any legislative policy. Its delicate and -difficult office is to ascertain and declare whether the legislation -is in accordance with, or in contravention of, the provisions of the -Constitution; and, having done that, its duty ends.” Harlan Stone, -in the magnificent dissent in which Brandeis and Cardozo joined, -expressed the responsibility of the court in this fashion: - - The power of courts to declare a statute unconstitutional is - subject to two guiding principles of decision which ought never - to be absent from judicial consciousness. One is that courts are - concerned only with the power to enact statutes, not with their - wisdom. The other is that while unconstitutional exercise of power - by the executive and legislative branches of the government is - subject to judicial restraint, the only check upon our own exercise - of power is our own sense of self-restraint. For the removal of - unwise laws from the statute books, appeal lies not to the courts - but to the ballot and to the processes of democratic government. - -Did the Supreme Court, in the _School Segregation Cases_, have -the power to abolish segregation by placing its own contemporary -construction on the Fourteenth Amendment? By casting aside Stone’s -“sense of self-restraint,” and by substituting their own notions of -what was right for the plain history of what was constitutional, -the judges could assume that naked power. In the end, that was what -they did--in violation of precepts they themselves had pronounced -eloquently in other cases. - -Mr. Justice Black, for example, was solidly on the side of judicial -tradition in 1946, in _Morgan_ v. _Virginia_ (328 U. S. 373). The -question was whether a Virginia law, requiring separate seats for -white and colored passengers on buses, placed an unconstitutional -burden on interstate commerce. A majority of the court thought it -did, but Black, though he agreed entirely with the result of the -majority’s ruling, protested strongly that the power to regulate -commerce was a power vested in the Congress and not in the courts. -Yet in a series of cases, the court had nullified State laws just -as it was nullifying Virginia’s enactment in the _Morgan_ case. -“I thought then, and still believe,” said Black, “that in these -cases the court was assuming the role of a ‘super-legislature’ in -determining matters of governmental policy.” Where was Mr. Justice -Black in May 1954? - -Mr. Justice Frankfurter has expounded many times upon the obligation -upon the court never to exceed its judicial powers. The question in -_Board of Education_ v. _Barnette_ (319 U. S. 634), was whether West -Virginia could compel its public school children to salute the flag. -Five times, the Supreme Court had held that such a requirement was -not in violation of the Constitution. Now, in 1943, with the shift -of two justices, the holding was reversed. Frankfurter’s eloquent -dissent provides a moving statement of the philosophy by which judges -should be guided in contemplating their judicial power: - - One who belongs to the most vilified and persecuted minority in - history is not likely to be insensible to the freedoms guaranteed - by our Constitution. Were my purely personal attitude relevant, - I should wholeheartedly associate myself with the general - libertarian views in the court’s opinion, representing as they - do the thought and action of a lifetime. But as judges we are - neither Jew nor Gentile, neither Catholic nor agnostic. We owe - equal attachment to the Constitution and are equally bound by our - judicial obligations whether we derive our citizenship from the - earliest or the latest immigrants to these shores. As a member of - this court I am not justified in writing my private notions of - policy into the Constitution, no matter how deeply I may cherish - them or how mischievous I may deem their disregard.... It can never - be emphasized too much that one’s own opinion about the wisdom or - evil of a law should be excluded altogether when one is doing one’s - duty on the bench. The only opinion of our own even looking in that - direction that is material is our opinion whether legislators could - in reason have enacted such a law. - -Much as he detested the West Virginia statute, Frankfurter found it -impossible to deny that reasonable legislators could have passed the -flag-salute law. He was guided to this conclusion by “the light of -all the circumstances” and by “the history of this question in this -court.” Thirteen Justices of the Supreme Court in other years had -found such laws within the constitutional authority of the States. In -view of this “impressive judicial sanction,” how could the power be -now prohibited to the States? In the past, said Frankfurter: - - this court has from time to time set its views of policy against - that embodied in legislation by finding laws in conflict - with what was called “the spirit of the Constitution.” Such - undefined destructive power was not conferred on this court by - the Constitution. Before a duly enacted law can be judicially - nullified, it must be forbidden by some explicit restriction upon - political authority in the Constitution. Equally inadmissible is - the claim to strike down legislation because to us as individuals - it seems opposed to the “plan and purpose” of the Constitution. - That is too tempting a basis for finding in one’s personal views - the purposes of the Founders. - - The uncontrollable power wielded by this court brings it very - close to the most sensitive areas of public affairs. As appeal - from legislation to adjudication becomes more frequent, and its - consequences more far-reaching, judicial self-restraint becomes - more and not less important, lest we unwarrantably enter social and - political domains wholly outside our concern. - -What had become of these views on the part of Mr. Justice Frankfurter -in May 1954? By that time, not merely thirteen Justices, but more -than thirty members of the court over a period of fifty-eight years -had upheld the constitutionality of racially separate schools. More -impressive judicial sanction scarcely could be imagined. And what -is to be said of an opinion, in a highly sensitive area of public -affairs, not even rationalized by “the spirit of the Constitution” or -the “plan and purpose” of the Constitution, but rather by “the effect -of segregation on public education” and “the extent of psychological -knowledge”? These provided the rationale of the _Brown_ decision, but -Mr. Justice Frankfurter did not open his mouth in dissent. - -Did the court have the power to do what it did? Mr. Justice Douglas, -another of the nine, in other days had warned that long-run stability -is best achieved when social and economic problems of the State and -nation are kept under political management of the people. Writing in -_49 Columbia Law Review_ some years ago, he observed sagely that “it -is when a judiciary with life tenure seeks to write its social and -economic creed into the Charter that instability is created.” In May -1954, Mr. Justice Douglas did his bit to create just that instability. - -Did the court have the power? That was the essence of Question 3. It -was the court’s most profound inquiry, for it probed the very soul -of judicial limitation and responsibility. Serious consideration -of Question 3 would have required of the judges a respect for the -wisdom and integrity of scores of judges and hundreds of State and -Federal legislators, all equally sworn to uphold the Constitution, -who had preceded them. The question should have suggested the utmost -restraint, the most selfless exercise of judicial discipline. “Is it -within the judicial power, in construing the amendment, to abolish -segregation in public schools?” - -“What is truth?” said jesting Pilate; and would not stay for an -answer. - - -VI - -The _School Segregation Cases_ came up for reargument before the -Supreme Court on December 8, 1953. By this time, the Kansas case was -moot (it is one of the many ironies of the story that the school -cases should be styled as _Brown_ v. _Board of Education of Topeka_, -taking their name from a controversy that had been settled by the -time the opinion came down), but the cases from Virginia, South -Carolina, and Delaware were still hotly at issue. The cast of lawyers -was the same, and again, questions from the bench seemed to indicate -a continuing division within the court. - -Counsel for the Negro plaintiffs, grappling with Question 1, -attempted to show that the Fourteenth Amendment was intended by its -framers and adopters to have a “broad, general scope.” John W. Davis -and T. Justin Moore, carrying the brunt of argument for the South, -relied upon the more tangible history of what actually happened in -terms of racially separate schools. Davis placed particular emphasis -upon the action of the Southern States in creating separate school -systems, without objection from Congress, even as they ratified the -amendment. Sumner and his fellow radicals might not have wanted to -challenge such Northern allies as Pennsylvania and Ohio, but “if -there were any place where sponsors of the amendment would have blown -the bugle for mixed schools, surely it would have been in those eight -States of Reconstruction legislation.” - -Frankfurter kept asking the various attorneys to explain why the -Congress itself never had adopted legislation to prohibit the States -from maintaining racially separate schools. Defense counsel said the -Congress had no power to do so; attorneys for the Negro plaintiffs -said Congress had the power, but opponents of segregation never had -had the votes. Frankfurter put an embarrassing question to J. Lee -Rankin, who as Assistant Attorney General had joined forces with the -NAACP. “Realistically,” Frankfurter suggested, “the reason this case -is here is that action couldn’t be attained from Congress. Certainly -it would be much stronger from your point of view if Congress had -acted, wouldn’t it?” - -Rankin agreed, but insisted that the court could achieve the desired -end by judicial pronouncement as well as the Congress could achieve -it by legislative action. Frankfurter persisted, taking judicial -notice of eighty-five years of segregation in Washington: - -“Is it to be said fairly that not only did Congress not exercise the -power under Section 5 with reference to the States but, in a realm -in which it has exclusive authority, it enacted legislation to the -contrary? Are you saying that legislation does not mean anything but -what it does? It just segregates, that’s all.” - -“Well, not exactly,” Rankin replied. “You have to find a conscious -determination by Congress that segregation was permitted under the -Fourteenth Amendment.” - -“You think legislation by Congress is like the British -Empire--something that is acquired in a fit of absent-mindedness?” - -“I wouldn’t make that charge before this court,” said Rankin stiffly, -“and I don’t want to be quoted in that manner.” - -Nevertheless, Frankfurter’s questions exposed the weakness of -the plaintiffs’ historical justifications. Rankin’s astonishing -idea--that Congress never really had thought much about what it was -doing, during all the years since 1868 in which it had provided -annually for segregated schools in Washington--was echoed in feeble -attempts to explain away the judicial precedents. Jackson and Reed -asked Rankin how he could account for decisions of Northern courts, -in such cases as _Garnes_, _King_, and _Cory_, holding that the -Fourteenth Amendment did not reach public schools. Rankin replied -weakly that “apparently there was no detailed study of the history -and background of the Fourteenth Amendment.” This was too much for -Jackson: “These men lived with the thing,” he said; “they didn’t have -to go to books.” - -The question that most troubled Jackson, however, was the key -question of judicial power. He wondered aloud if it were appropriate -“for the court, after all that has intervened, to exercise this -power instead of leaving it to Congress.” Thurgood Marshall, for the -plaintiffs, insisted that theories of a dynamic, growing Constitution -abundantly justified the court in reversing Plessy and in placing its -own contemporary construction on the Amendment. John W. Davis, for -the defense, strongly disagreed: “At some time 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.” - -Painstakingly, counsel for the Southern States called the roll of -precedents supporting--or not disturbing--the long-established -doctrine of “separate but equal.” The _Plessy_ case of 1896 had been -followed in December 1899 by _Cumming_ v. _Richmond County Board -of Education_ (175 U. S. 528). Here the facts were that a Georgia -county had closed its Negro high school and required local Negro -high school students to go into Augusta for schooling, in order to -convert the high school to the needs of three-hundred elementary -pupils. The Negro high school pupils sought an injunction to upset -this arrangement. And though the denial of equal facilities locally -might seem plain, a _unanimous_ Supreme Court found no merit in the -Negroes’ claim. Some of the students might be inconvenienced by the -requirement that they attend one of the three Negro high schools -in nearby Augusta, but their inconvenience had to be set against -the needs of the elementary children. Further, nothing constructive -would be gained by closing the white high school merely because the -Negro high school was no longer operating. “Under the circumstances -disclosed,” said the court, “we cannot say that this action ... was, -_within the meaning of the Fourteenth Amendment_, a denial by the -State to the plaintiffs and those associated with them of the equal -protection of the law, or of any privileges belonging to them as -citizens of the United States. The education of the people in schools -maintained by State taxation is a matter belonging to the respective -States, and any interference on the part of Federal authority with -the management of such schools cannot be justified except in the -case of a clear and unmistakable disregard of rights secured by -the supreme law of the land.” [Emphasis supplied.] It is curious, -one may note in passing, that persons who so reverently admire -Mr. Justice Harlan’s dissent of 1896 in _Plessy_ customarily fail -altogether to acknowledge that it was Mr. Justice Harlan who spoke in -1899 for a unanimous court in _Cumming_. - -The court’s pronouncement in _Cumming_ was cited the following -year in the New York Court of Appeals (161 N. Y. 598), when Negro -petitioners challenged the right and power of Queens Borough to -maintain separate schools. The New York court refused to disturb the -system: “It is equal school facilities and accommodations that are -required to be furnished, and not equal social opportunities.” - -In November 1908, the Supreme Court considered a suit brought by -Berea College against the Commonwealth of Kentucky (211 U. S. 45). -Berea, a private college, had been operating as a racially integrated -institution. A State law was enacted making it unlawful for any -corporation chartered in Kentucky to maintain a private school on -such a basis. On the grounds that the law was within Kentucky’s power -to regulate Kentucky corporations, a majority of the Supreme Court -held the law valid. Harlan dissented warmly. He thought Berea’s -right to admit pupils of its own choosing to its classrooms was “a -liberty inherent in the freedom secured by fundamental law,” but he -did not wish to be misunderstood: “Of course what I have said has no -reference to regulations prescribed for public schools, established -at the pleasure of the State and maintained at the public expense.” - -Six years later, the generic question of “separate but equal” was -again before the Supreme Court, in _McCabe_ v. _Atchison, Topeka & -Santa Fe Railway Company_ (235 U. S. 151). A Negro passenger had sued -to halt enforcement of an Oklahoma law requiring racial separation on -coaches. The trial court had dismissed the suit by calling attention -to _Plessy_ and saying that the power of the States to require -separate but equal accommodations “could no longer be considered an -open question.” Said Hughes for a unanimous Supreme Court: “There is -no reason to doubt the correctness of that conclusion.” - -Thirteen years elapsed. Membership on the court changed. On November -21, 1927, when the court decided _Gong Lum_ v. _Rice_ (275 U. S. -78), Taft was Chief Justice; his brothers included such giants of -the law as Holmes, Brandeis, and Stone. The question of the power of -the States to maintain racially separate but equal schools was put -squarely before the court. Mississippi had insisted that a Chinese -child, Martha Lum, attend a Negro high school in Bolivar County -instead of a white high school. This was what Taft said, speaking for -a _unanimous_ court: - - The question here is whether a Chinese citizen of the United States - is denied equal protection of the laws when he is classed among - the colored races and furnished facilities for education equal to - that offered to all, whether white, brown, yellow or black. Were - this a new question, it would call for very full argument and - consideration, but we think that it is the same question which has - been many times decided to be within the constitutional power of - the State legislature to settle without intervention of the Federal - courts under the Federal Constitution.... The decision is within - the discretion of the State in regulating its public schools, - _and does not conflict with the Fourteenth Amendment_. [Emphasis - supplied.] - -The _Gong Lum_ case was in 1927. Eleven years later the Supreme Court -dealt with a suit brought by Lloyd Gaines, a Negro, seeking admission -to the law school of the University of Missouri (305 U. S. 337). The -_Gaines_ case is important, because it sometimes is said that it -heralded in 1938 the end of “separate but equal” in 1954. It did no -such thing. The State of Missouri then had no law school for Negroes; -the practice was to pay tuition fees, out of State, for the few -Negro students seeking legal education. Other Negro college students -attended Lincoln University in St. Louis, where Missouri sought -to fulfill its obligation to provide the same general advantages -of higher education for Negroes that it provided for whites by -furnishing equal facilities in separate schools. Chief Justice -Hughes said for the court that this was a method, “_the validity -of which has been sustained by our decisions_.” He was sympathetic -to Missouri’s plan to build Lincoln University into an institution -genuinely equal to the University of Missouri at Columbia. “But -commendable as is that action, the fact remains that instruction in -law for Negroes is not now afforded by the State, either at Lincoln -University or elsewhere.” The court therefore ordered Gaines admitted -to the Missouri Law School. McReynolds dissented, with Butler joining -him. They felt Missouri’s offer to pay Gaines’ tuition in a nearby -law school of good standing would provide the student with abundant -opportunity to study law “if perchance that is the thing really -desired.” In attempting in good faith to meet the constitutionally -sanctioned requirements of separate but equal, said McReynolds, “the -State should not be unduly hampered through theorization inadequately -restrained by experience.” - -Three other cases that were reviewed in the oral argument before the -Supreme Court in December 1953 also dealt with higher education at -the graduate-school level. The circumstances in _Sipuel_ v. _Board -of Regents of the University of Oklahoma_ (332 U. S. 630) paralleled -the circumstances of the _Gaines_ case; the court entered no more -than a _per curiam_ order directing that _Gaines_ be followed. On -June 5, 1950, the last two cases were decided: _Sweatt_ v. _Painter_ -(339 U. S. 629) and _McLaurin_ v. _Oklahoma State Regents for -Higher Education_ (339 U. S. 637). In both opinions, the court, -speaking through Chief Justice Vinson, was careful to emphasize -that it was following _Gaines_ (that is, that it was following -“separate but equal”) and was not reexamining _Plessy_ at all. In -the _Sweatt_ case, Texas had attempted to establish a Negro law -school at Austin that would be the equal of its University of Texas -Law School in Houston. Relying upon the “intangibles that make for -greatness in a law school,” the court held such equality impossible -of attainment. Similarly, in the _McLaurin_ case, in which Oklahoma -had sought to segregate a Negro graduate in the use of library and -cafeteria facilities, Vinson held for the court that “_under these -circumstances_,” the Fourteenth Amendment precluded any distinction -in treatment of students based upon race. - -Regardless of one’s views on the rightness or wrongness of -segregation in the public schools, how are these precedents fairly to -be characterized? Plainly, they form one unbroken chain, reaching -back to the very ratification of the Fourteenth Amendment: _Garnes_ -in Ohio, _Stoutmeyer_ in Nevada, _Ward_ in California, _Cory_ in -Indiana, _Bertonneau_ in Louisiana, _King_ in New York, _Lehew_ -in Missouri, _Plessy_ in Louisiana, _Cumming_ in Georgia, _Berea_ -in Kentucky, _McCabe_ in Oklahoma, _Gong Lum_ in Mississippi, -_Gaines_ in Missouri--in every one of these, extending from 1871 -to 1938, the doctrine of “separate but equal” had been judicially -sanctioned as not in violation of the Fourteenth Amendment. And in -_Sipuel_, _McLaurin_, and _Sweatt_ the doctrine had simply been ruled -not applicable in the peculiar circumstances of graduate-school -instruction. - -This was the chain the court snapped in the _School Segregation -Cases_. Six months after the case had been reargued, on May 17, 1954, -Chief Justice Warren spoke for a unanimous court in overruling and -discarding this uniform interpretation of more than eighty years. -The text of the court’s opinion appears in the Appendix, along with -its companion decision in the _Bolling_ case from the District of -Columbia. Here it will be seen that the court blandly dismissed the -massive evidence of “intent” with a regal hand: The evidence was -“inconclusive.” Then, disdaining every rule of jurisprudence which -says that law cases should be decided on points of law, the court -delivered itself of some homilies on the importance of education: -“Today, education is perhaps the most important function of State -and local governments.” Everyone must have an education: “It is the -very foundation of good citizenship. It is a principal instrument in -awakening the child to cultural values.” Said the court: - - We come then to the question presented: Does segregation of - children in public schools solely on the basis of race, even though - the physical facilities and other “tangible” factors may be equal, - deprive the children of the minority group of equal educational - opportunities? We believe that it does. - -That was the key paragraph. The court went on to assert that -the “intangible considerations” it had found to be important in -graduate-school instruction apply with added force to children in -grade and high schools. “To separate them from others of similar age -and qualifications solely because of their race generates a feeling -of inferiority as to their status in the community that may affect -their hearts and minds in a way unlikely ever to be undone.” Whatever -may have been the extent of psychological knowledge at the time of -_Plessy_, said the court, “this finding is amply supported by modern -authority.” And the court inserted its famous Footnote 11 to prove it. - -This footnote directed the inquisitive reader to seven sources. -The first was a paper prepared by Kenneth B. Clark, “The Effect of -Prejudice and Discrimination on Personality Development,” delivered -at the 1950 White House Conference on Children and Youth; Clark, -a professor of psychology at the College of the City of New York, -was then at least presumptively on the payroll of the NAACP--he was -“social science consultant for the NAACP’s legal and educational -division.” A second source was “Personality in the Making,” by Helen -Leland Witmer and Ruth Kotinsky. The third was a report of a survey -conducted for the American Jewish Congress in 1947 by Max Deutscher -and Isidor Chein. They sent a questionnaire to 849 social scientists, -asking, first in the affirmative and then in the negative, “[Do -you] believe that enforced segregation has (has not) a detrimental -psychological effect on members of the racial or religious groups -which are segregated?” A second question, similarly phrased, sought -the social scientists’ opinions on whether such segregation has -detrimental effects on the majority group imposing the segregation. -All told, 517 of those queried returned the questionnaire (32 of the -517 were from the South). Not surprisingly, 90 per cent of the 517 -obligingly answered Ja to the first question and 83 per cent said Ja -to the second. Had there been an opportunity to put Deutscher and -Chein on a witness stand, counsel for the South might have sought -clarification on what was meant by “enforced,” what by “segregation,” -and what by “detrimental,” and rebuttal witnesses might have been -summoned to testify on the effects, detrimental or otherwise, of -enforced integration on the majority group. - -The fourth authority cited by the court was a paper by Chein in a -publication of such large obscurity and small circulation that few -persons can have examined it: “What are the Psychological Effects -of Segregation under Conditions of Equal Facilities,” in Volume 3 -of the _International Journal of Opinion and Attitude Research_ -(1949). Fifth on the list was “Educational Costs in Discrimination -and National Welfare,” by Theodore Brameld, then a professor of -educational philosophy at the University of Minnesota. The sixth -reference was to Edward Franklin Frazier’s _The Negro in the United -States_. Frazier is a Negro sociologist, professor of sociology at -Howard University, who served as chairman of UNESCO’s committee of -experts on race. - -And finally, said the court, “see generally Myrdal, _An American -Dilemma_.” - -“We conclude,” said the court, “that in the field of public education -the doctrine of ‘separate but equal’ has no place. _Separate -educational facilities are inherently unequal_.” [Emphasis supplied.] -That final sentence contained perhaps the greatest irony of them all, -for unless words have lost their meaning, the court here decreed -equality for the Negro by finding the Negro innately not equal. What -else did the court mean? Here we are told, on the authority of the -most eminent court in the world, that if one-hundred Negro pupils are -put to study in one building, and one-hundred white pupils are put to -study in an identical building, the first group of pupils, who have -been segregated solely on the basis of race, will make up a school -_inherently_ unequal to the other. “Inherently” comes from the Latin -_haerere_, to stick; it means “firmly infixed; belonging by nature.” -And when the court concluded that separate schools for Negroes are -inherently unequal, it made a judicial finding of fact with which a -great many Southerners would find themselves in wry agreement. - -That was the substance of the _Brown_ decision. Because of the -predictable impact of the ruling and the great variety of local -conditions, the court asked for reargument on the formulation of -specific decrees. A year later, on May 31, 1955, a supplementary -opinion (this also appears in full in the Appendix) sent the cases -back to the trial courts with instructions to enter decrees ordering -“the parties to these cases admitted to public schools on a racially -nondiscriminatory basis with all deliberate speed.” By that time, -Kansas had abandoned segregation altogether in its schools; so had -the District of Columbia; so had Delaware over much of the State. In -the course of time, Prince Edward County, Virginia, was to abandon -public education rather than submit to compulsory desegregation of -its schools. The public schools of Clarendon County, S. C., are -still operating as I write, in the spring of 1962, as completely -segregated as they were in the spring of 1954. The new Negro schools -are bright and shining and consolidated, and some of the children of -the original plaintiffs of 1951, it is said, are placidly attending -them. - -What was wrong with the _Brown_ decision? The Sibley Commission in -Georgia summarized the South’s protest in two sweeping sentences: - - We consider this decision utterly unsound on the facts; contrary - to the clear intent of the Fourteenth Amendment; a usurpation of - legislative function through judicial process; and an invasion of - the reserved rights of States. We further consider that, _putting - aside the question of segregation_, this decision presents a clear - and present danger to our system of constitutional government, - because it places what the court calls “modern authority” in - sociology and psychology above the ancient authority of the law, - and because it places the transitory views of the Supreme Court - above the legislative power of Congress, the settled construction - of the Constitution, and the reserved sovereignty of the several - States. [Emphasis supplied.] - -If the student of American government can do as the Sibley commission -suggests, and put aside the question of segregation--eliminate all -the emotional overtones of “prejudice” and “discrimination” and -“second-class citizens”--he will get a clearer picture of the most -disturbing aspect of the _School Segregation Cases_. One of the most -cherished myths of American tradition, as strong and as insubstantial -as any doctrine of religion, is that ours is “a government of laws, -not men.” Viewed coldly and nakedly, the proposition is palpably -absurd; wine is wine, and bread is bread. But by some devout act of -political transubstantiation, the faith of the American people has -imbued this doctrine with a special venerability: We have been reared -to believe that law exists metaphysically, above and beyond the -mortal men who enforce it. As an institution, the high court commands -respect, not for the nine frail vessels beneath the robes, but out of -deference to the higher, holier grail they represent. - -And this was what the court shattered in the _Brown_ case: The myth, -the grail, the mystery of the law. “The judicial function is that -of interpretation,” Sutherland once said; “it does not include the -power of amendment under the guise of interpretation.” Cardozo said -the same thing: “We are not at liberty to revise while professing -to construe.” Hughes said it too: “The power of this court is not -to amend, but only to expound the Constitution as an agency of the -sovereign people who made it and who alone have authority to alter or -unmake it.” - -But the court disdained these ancient and elementary rules. “By its -decision in the _Brown_ case,” former Justice Byrnes has said, “the -court did not interpret the Constitution. It really amended the -Constitution.” This the court had no legal or moral right to do. It -had only the power to do it--the absolute power, in Acton’s famous -phrase, that left unrestrained, corrupts absolutely. - - - - -Part III - -Prayer of the Petitioner - - -I had not intended to write a “Part III” for this book. The object -was to put forth a brief for the South in the single narrow field of -racially separate public schools; my thought was to summarize and -argue the law and the evidence of _Brown_ v. _Board of Education_ -as the South views them, and to leave such issues as “sit-ins,” -and voting rights, and the Negro’s future for another day. Yet a -familiar part of the pleading in almost any case is the prayer of the -petitioner, and there is something more to be said for the South in -that hypothetical role. - -Patience, the South would ask of its adversaries: Be patient; be -tolerant of imperfection; be mindful that in these difficult areas of -race and race relations, wisdom and virtue do not reside exclusively -in the North, nor sin and ignorance exclusively in the South. The -white man most surely has been at fault; that is conceded. But in his -own way, the black man has been at fault too. And in neither racial -camp can these faults be corrected in the twinkling of a generation. - -The apostles of instant innovation, crying zealously for change, do -not comprehend the elemental nature of the forces they are dealing -with. “All is race,” said Disraeli in _Tancred_; “there is no other -truth.” The earliest history of man reflects an awareness of racial -distinctions; in one fashion or another, discrimination has existed -through all recorded time, and “prejudice,” if you please, like the -poor, has been with us always. It exists among the Negro people -themselves. It exists around the world, and may be seen in especially -cruel and virulent forms in some of those nations said to be so -terribly offended by the manifestations of segregation that remain in -the American South. The beam in the eye of Herman Talmadge is small -against the mote in the eye of Mr. Nehru. The Old World has lived -with these problems several millennia longer than the New, but it has -solved them not better; in truth, it has solved them much less well, -and in most cases, it has not solved them at all. - -As a creature of the law, racial segregation in the United States -is dead. The voices once confidently raised in the South, crying -that the court would reverse itself in time, have all but died out -now. The court will not reverse itself. On February 26, 1962, a _per -curiam_ opinion rebuked a Mississippi Federal court in icy terms: -“We have settled beyond question that no State may require racial -segregation of interstate or intrastate transportation facilities. -The question is no longer open; it is foreclosed as a litigable -issue.” (_Bailey_ v. _Patterson_, 30 LW 4164.) Similarly, the court -has plunged far beyond the reasoning it advanced in _Brown_ as -a justification for prohibiting segregation in the schools; the -hearts and minds of children, the importance of education, and the -intangibles of a classroom do not figure at all in cases that involve -golf courses, courthouse cafeterias, and the rest rooms of public -buildings. Many staunch Southerners, declaring themselves unwilling -to surrender, do not realize that as a matter of law, the war is -over. There is now not the slightest possibility of a constitutional -amendment to undo what the court did; the Congress will never pass -a law that sanctions segregation in a public institution; the court -is unanimous in its resolution, and some of its members are young. -The Southern State that puts reliance hereafter in any law requiring -racial separation is relying upon a vain and useless thing. We should -be better off, as a matter of law, if Southern legislatures would -go through their Codes with an art gum, erasing the word “Negro” -wherever it appears. Statutory defenses against segregation, apart -from any remaining value they may have in obtaining the law’s delays, -are useless. - -These are harsh truths for the South, but the South would do well to -grasp them; once understood, they suggest a course of events in which -accommodation may be found within the broad structure of a voluntary -society. Ovid is sufficient authority for the maxim that nothing is -stronger than custom; and by relying upon custom, and freedom, and -precepts of the law as yet uncorrupted by the court, the South--and -here I mean the white South and the Negro South alike--can discover -some room to turn around in. - -Virginia has pointed a way toward such an accommodation, so far as -education is concerned, in its freedom-of-choice program. Under -an act of the General Assembly of 1958, every child in Virginia -has a _right_ to choose between attending a public school or a -nonprofit, nonsectarian private school. The law has nothing to do -with segregation or desegregation. The modest tuition grants provided -in the law (in no case is a grant higher than the local per-pupil -cost in public schools) are intended to represent each child’s equal -share in a total appropriation for purposes of education, and the -State stands indifferent to the child’s way of spending it: Public or -private, it is all the same to the Commonwealth, so long as the child -is schooled. - -The freedom-of-choice plan is working now, harmoniously and -effectively, in such areas of Virginia as Norfolk, Charlottesville, -and Front Royal. In each of the localities, the public schools are -desegregated; in each of the localities, good private schools are -operating. Some white families have made one choice, some another. -In a number of cases, white children living in Albemarle County and -Norfolk County have obtained county tuition grants in order to attend -the desegregated public schools of neighboring Charlottesville and -Norfolk city. The State raises no objection. This is the students’ -right. - -The private schools now operating in Virginia have limited their -admissions, to the best of my knowledge, to white pupils only. This -condition may change in time; nothing prevents the organization -of nonprofit schools for Negroes only, or for Negroes and whites -together. In any event, the right of any group of parents to found a -school to their taste would appear beyond successful challenge. “The -most natural right of man,” said Tocqueville, “next to the right of -acting for himself, is that of combining his exertions with those of -his fellow creatures and of acting in common with them. The right -of association therefore appears to be almost as inalienable in -nature as the right of personal liberty. No legislature can attack it -without impairing the foundations of society.” - -Virginia is feeling its way carefully with the freedom-of-choice -program. In the 1960-61 school year, 8127 pupils (or a little less -than 1 per cent of the 874,000 children in public schools) gave up -their right to attend a public school and chose, instead, to exercise -their rights under the 1958 law. They obtained grants amounting to -$1.8 million out of total school spending (including sums for capital -outlays) of some $290 million. Public school administrators, many of -whom are fearful of private school competition and jealously opposed -to the program, tend to regard the grants as a net cost--as something -taken away from them. Plainly this is not true. About $200,000 in -grants were taken by pupils who applied the sums to tuition costs in -neighboring public schools, as in Charlottesville and Norfolk; other -outlays were offset by the simple absence of the pupils from public -schools--the State did not have to build classrooms or hire teachers -to teach them. When it is kept in mind that the nonprofit private -schools must meet their own capital costs from contributions and -endowments, the prospect of an ultimate saving to the Commonwealth -becomes evident. These construction costs are a part of the price a -free people should be permitted to pay for freedom to conduct their -lives as they wish. It is inconceivable that Federal courts should -outlaw this voluntary, nondiscriminatory plan as a mere subterfuge or -circumvention of the _Brown_ decision. It emphatically is not. - -In _Pierce_ v. _Society of Sisters_ (268 U. S. 510) the Supreme Court -laid down the principles on which Virginia is relying. The opinion -held unconstitutional an Oregon act of 1922 requiring children of -that State to attend public schools and public schools only. A -private military academy and a Catholic parochial school complained -that the law violated the right of parents to choose schools for -their children where the pupils would receive the sort of training -the parents wished them to have; beyond that, the law violated the -right of private schools and teachers to engage in a useful and -lawful business or profession. - -A unanimous court, speaking through Mr. Justice McReynolds, accepted -the plaintiffs’ position entirely. Oregon’s law “unreasonably -interferes with the liberty of parents and guardians to direct the -upbringing and education of children under their control.” Their -rights in this regard are guaranteed by the Constitution and may not -be abridged by legislation which has no reasonable relation to some -purpose within the competency of the State. “The fundamental theory -of liberty upon which all governments in this Union repose excludes -any general power of the State to standardize its children by forcing -them to accept instruction from public teachers only. The child is -not the mere creature of the State; those who nurture him and direct -his destiny have the right, coupled with the high duty, to recognize -and prepare him for additional obligations.” - -As Douglas said in _Lerner_ v. _Casey_ (357 U. S. 468), the liberties -guaranteed to the citizen by the First and Fourteenth amendments -include “the right to believe what one chooses, the right to differ -from his neighbor, the right to pick and choose the political -philosophy that he likes best, the right to associate with whomever -he chooses, the right to join the groups he prefers, the privilege -of selecting his own path to salvation.” And in a case upholding the -right of Negroes to associate, Mr. Justice Harlan expressed for the -court the same view that white parents take in forming a private -school for their children: “It is beyond debate that freedom to -engage in association for the advancement of beliefs and ideas is -an inseparable aspect of the ‘liberty’ assured by the Fourteenth -Amendment.” (_NAACP_ v. _Alabama_, 357 U. S. 449.) - -The high court’s opinion in the _School Segregation Cases_ did -nothing to interfere with these basic concepts of individual freedom -of action in areas of education. It is important to understand, the -Fourth U. S. Circuit Court of Appeals has said, “exactly what the -Supreme Court has decided [in _Brown_] and what it has not decided in -this case”: - - It has not decided that the Federal courts are to take over or - regulate the public schools of the States. It has not decided that - the States must mix persons of different races in the schools or - must require them to attend schools, or must deprive them of the - right of choosing the schools they attend. What it has decided, - and all that it has decided, is that a State may not deny to any - person on account of race the right to attend any school that it - maintains. This, under the decision of the Supreme Court, the - State may not do directly or indirectly; but if the schools which - it maintains are open to children of all races, no violation of - the Constitution is involved even though the children of different - races voluntarily attend different schools, as they attend - different churches. Nothing in the Constitution or in the decision - of the Supreme Court takes away from the people the freedom to - choose the schools they attend. The Constitution, in other words, - does not require integration. It merely forbids discrimination. - It does not forbid such segregation as the result of voluntary - action. It merely forbids the use of governmental power to enforce - segregation. The Fourteenth Amendment is a limitation upon the - exercise of power by the state or State agencies, not a limitation - upon the freedom of individuals. - -This interpretation by an exceptionally able appellate court offers -the South, if only the South will accept it (and if our more rabid -and influential friends in the North will abate their impatient -demands), some basis for a tolerable way of life. In its immediate -application, the Supreme Court’s decision in the four suits decided -by _Brown_ was not, of course, “the supreme law of the land.” It -was, as every court opinion must be, simply the law of the case, -disposing of the controversies between the named plaintiffs and the -named defendants. Even though such suits are “class actions,” the -class in each case is limited by such facts as those of geography; -a court order directed against Clarendon County does not require -the superintendent of schools in adjoining Sumter County to do -anything. Thus, under well-accepted principles of law, the counties -and cities of the South that are not under court order stand under -no legal obligation to alter their traditional school policies. No -law or court order requires them to integrate; no law or court order -requires them affirmatively to take any action. True, if a point is -made of it, and formal complaint of discrimination is filed, local -school officials must then yield to the principles laid down by the -Supreme Court; they can yield voluntarily, or they can go through the -motions of a predictable court proceeding, but they cannot deny the -child by reason of his race the right to attend any public school -under their supervision. - -This deliberate, unhurried view of the school problem tends to -madden the professional integrationist. He looks at the progress of -desegregation in the South, eight years after _Brown_, and apart from -the border States he sees: - - --------------------------------------------------------------- - DESEGREGATION OF PUBLIC SCHOOLS, - ELEVEN SOUTHERN STATES, MAY 17, 1962 - --------------------------------------------------------------- - _Negroes in Schools - _Enrollment_ With Whites_ - _State_ _White_ _Negro_ _Number_ _Per cent_ - - Alabama 523,000 276,000 0 0.000 - Arkansas 320,000 109,000 151 0.139 - Florida 927,000 242,000 648 0.268 - Georgia 642,000 303,000 8 0.003 - Louisiana 450,000 295,000 12 0.004 - Mississippi 294,000 287,000 0 0.000 - North Carolina 787,000 333,000 203 0.061 - South Carolina 364,000 265,000 0 0.000 - Tennessee 663,000 155,000 1,167 0.750 - Texas 1,892,000 301,000 4,000 1.330 - Virginia 657,000 217,000 536 0.247 - ----------- - Source: Southern School News, May 1962. - --------------------------------------------------------------- - -These figures arouse the South’s critics, but another fact -contributes more significantly to their exasperation: The people of -the South, white and Negro together, continue to dwell amiably side -by side. Except where hired missionaries from the NAACP can stir up -a lawsuit, agitation for an end to school segregation ranges from -small to nil. The Southern States have put these past eight years -to good use in pouring a fortune into equalization of Negro school -facilities. Old patterns persist because many Negro families, to -the disgust of the U. S. Civil Rights Commission, find the patterns -not intolerable. In Virginia, for example, Negro parents know that -they can petition successfully for admission of their children to -the nearest “white” school; local officials no longer even resort to -court delays. But three years after collapse of Virginia’s massive -resistance, fewer than one-quarter of 1 per cent of the Negro parents -have taken the trouble to do so. - -This slow path toward evolutionary change should commend itself to -reasonably minded men. Whatever violence to constitutional law was -done by the _Brown_ decision, it is done; we ought not to condone -it, defend it, rationalize it, or forgive it, but we ought not to -pretend that it never happened. We of the South have to live with -these new legal principles, and accommodate our society to them. So -far as the education of children is concerned, this can be done (1) -by continuing to provide the best possible schools our resources -can provide; (2) by continuing to separate children by race, in the -certain conviction that such basic pupil assignments violate no law -or court order, and are in accord with community wishes; and (3) -by approving and accepting individual, particular applications for -transfer or admission on a genuinely nondiscriminatory basis. And if, -in addition, entirely apart from any racial considerations whatever, -a freedom-of-choice program can be put in motion to stimulate the -growth of private education, the South’s school problems can be -controlled for a long time to come. - - * * * * * - -Your petitioners are hopeful that such an approach, much as it -may annoy the advocates of compulsory integration, will find a -favorable response among men who are willing to take the long view. -It seems to us wholly in accord with the oldest principles of -federalism--principles that have contributed much to the strength and -vitality of this Republic. It is the diversity of the States, their -ability to experiment, their right and power to respond to a variety -of local conditions and customs that together prevent the evils of -excessive centralism. “The traditions and habits of centuries were -not intended to be overthrown when the Fourteenth Amendment was -passed,” said Holmes. He remarked again: “There is nothing that I -more deprecate than the use of the Fourteenth Amendment beyond the -absolute compulsion of its words to prevent the making of social -experiments that an important part of the community desires, in the -insulated chambers afforded by the several States, even though the -experiments may seem futile or even noxious to me and to those whose -judgment I most respect.” - -Not only is this approach in accord with a wise federalism; it -also offers the greatest opportunity to the Southern Negro himself. -In the course of a debate in the _Saturday Review_ with William -Sloane Coffin, the New York-born William F. Buckley, Jr., said -this: “If it is true that the separation of the races on account of -color is nonrational, then circumstance will in due course break -down segregation. When it becomes self-evident that biological, -intellectual, cultural, and psychic similarities among the races -render social separation atavistic, then the myths will begin to -fade, as they have done in respect of the Irish, the Italian, the -Jew; then integration will come--the right kind of integration.” - -The South has begun to look upon its Negro people, since _Brown_, -in a new way. Shortcomings of the Negro that earlier had been -merely sensed are now acutely seen. But this is no bad thing. -Before any social ill may be remedied, it first must be diagnosed -and understood. Many a Southerner is now sensitive to the outward -and visible signs of segregation; he was not so before. Today the -detritus of a crumbling institution may be observed at every hand, -and there are times when he squirms a little inside. This retreat -to neutrality on the white man’s part is a necessary condition if -the Negro, _by his own exertions_, is to find an equal place in the -sun. In the end, the white man cannot do the job for him; Jim Crow -is dead, but the legal shot that felled him also put Massa in the -cold, cold ground. It is said that the high court “cast off the -Negro’s shackles”; it cast off his crutches too. The paternalism of -generations is vanishing year by year, to be replaced by a healthy -skepticism: The Negro says he’s the white man’s equal; _show me_. - -No decree of court, no act of Congress, can give the Negro more than -this. He has no right--no legal right, no moral right--to intrude -upon the private institutions of his neighbors. If individual liberty -means anything, it must mean that each individual, regardless -of color, is at liberty to choose his own personal and business -associates, and to choose them for whatever reason. This the Negro -must understand. If he is to become a part of this association, on -equal terms, he must do what every other race of men has done since -time began, and that is to demonstrate his worth to the community -he seeks to enter. For more than three-hundred years, the white -South by and large has regarded such entry as impossible. I would -be less than honest if I did not acknowledge that a great part of -the Deep South still views the slightest yielding as anathema. But -elsewhere in my changing and unchanging land, the old unequivocal -“no” to Negro equality slowly merges into a doubtful “maybe.” On -the day that I write these concluding paragraphs, the local transit -company in Richmond has announced employment of its first Negro bus -drivers. The story made page one; but it made just the bottom of -page one, and the Capital of the late Confederacy will not voice -the slightest ripple of objection. If these drivers make it up the -hill, others will follow. If the first Negro clerks in local retail -stores can sell themselves, the experience of one merchant will -persuade his neighbor. And the more the Negro people can do within -their own neighborhoods and business communities, the more the white -community’s retreat to neutrality will continue. - -I believe the South will maintain what I have termed essential -separation of the races for years to come. This means very nearly -total segregation in education, where the intimate, personal, and -prolonged association of white and Negro boys and girls, in public -schools, in massive numbers, as social equals, is more than community -attitudes will accept. The sad example of Prince Edward County, -where a resolute rural people abandoned all public schools, offers -an instructive lesson to the advocates of frontal assault. “We see -the wisdom of Solon’s remark,” Jefferson once observed, “that no more -good must be attempted than the nation can bear.” This essential -separation also takes in such wholly social institutions as private -clubs. I cannot foresee the integration of Protestant churches in -the South. And whatever the Supreme Court may do in time to the -miscegenation laws, ostracism, swift and certain, awaits those who -would cross this marital line. But my guess would be that in areas -of higher education, in many fields of employment, in professional -associations, in such quasi-public fields as hotels, restaurants, and -concert halls, doors that have been closed will open one by one. And -a South that once would have regarded these innovations with horror -will view them at first with surprise, then with regret, for a time -with distaste, and at last with indifference. As the migration of -the Negro out of the South continues, other parts of the nation, at -once benefited and handicapped for want of the South’s experience in -coexistence, will grapple in their own fashion with the cultural and -economic assimilation of the Negro. They will not find it easy, but -they can rely upon this: The South will not intrude its views upon -theirs. This is a big country, a great country; it remains the freest -country on earth, and the Negro people are a part of it. The law has -done what it can for Negroes as a whole; the law will do more, in -specific situations. The rest is up to time, and up to the Negroes -themselves. - - - - -Appendix - - - - -Appendix - - - BROWN et al. v. BOARD OF EDUCATION OF TOPEKA - et al. [347 U. S. 483] - - Appeal from the United States District Court for the - District of Kansas[1] - - Argued December 9, 1952.--Reargued December 8, 1953.--Decided - May 17, 1954. - -MR. CHIEF JUSTICE WARREN delivered the opinion of the Court. - -These cases come to us from the States of Kansas, South Carolina, -Virginia, and Delaware. They are premised on different facts and -different local conditions, but a common legal question justifies -their consideration together in this consolidated opinion.[2] - -In each of these cases, minors of the Negro race, through their legal -representatives, seek the aid of the courts in obtaining admission -to the public schools of their community on a nonsegregated basis. -In each instance, they had been denied admission to schools attended -by white children under laws requiring or permitting segregation -according to race. This segregation was alleged to deprive the -plaintiffs of the equal protection of the laws under the Fourteenth -Amendment. In each of the cases other than the Delaware case, a -three-judge federal district court denied relief to the plaintiffs -on the so-called “separate but equal” doctrine announced by this -Court in _Plessy_ v. _Ferguson_, 163 U. S. 537. Under that doctrine, -equality of treatment is accorded when the races are provided -substantially equal facilities, even though these facilities be -separate. In the Delaware case, the Supreme Court of Delaware adhered -to that doctrine, but ordered that the plaintiffs be admitted to the -white schools because of their superiority to the Negro schools. - -The plaintiffs contend that segregated public schools are not “equal” -and cannot be made “equal,” and that hence they are deprived of the -equal protection of the laws. Because of the obvious importance of -the question presented, the Court took jurisdiction.[3] Argument -was heard in the 1952 Term, and reargument was heard this Term on -certain questions propounded by the Court.[4] - -Reargument was largely devoted to the circumstances surrounding the -adoption of the Fourteenth Amendment in 1868. It covered exhaustively -consideration of the Amendment in Congress, ratification by the -states, then existing practices in racial segregation, and the views -of proponents and opponents of the Amendment. This discussion and -our own investigation convince us that, although these sources cast -some light, it is not enough to resolve the problem with which we are -faced. At best, they are inconclusive. The most avid proponents of -the post-War Amendments undoubtedly intended them to remove all legal -distinctions among “all persons born or naturalized in the United -States.” Their opponents, just as certainly, were antagonistic to -both the letter and the spirit of the Amendments and wished them to -have the most limited effect. What others in Congress and the state -legislatures had in mind cannot be determined with any degree of -certainty. - -An additional reason for the inconclusive nature of the Amendment’s -history, with respect to segregated schools, is the status of public -education at that time.[5] In the South, the movement toward free -common schools, supported by general taxation, had not yet taken -hold. Education of white children was largely in the hands of private -groups. Education of Negroes was almost non-existent, and practically -all of the race were illiterate. In fact, any education of Negroes -was forbidden by law in some states. Today, in contrast, many Negroes -have achieved outstanding success in the arts and sciences as well -as in the business and professional world. It is true that public -school education at the time of the Amendment had advanced further -in the North, but the effect of the Amendment on Northern States was -generally ignored in the congressional debates. Even in the North, -the conditions of public education did not approximate those existing -today. The curriculum was usually rudimentary; ungraded schools were -common in rural areas; the school term was but three months a year in -many states; and compulsory school attendance was virtually unknown. -As a consequence, it is not surprising that there should be so little -in the history of the Fourteenth Amendment relating to its intended -effect on public education. - -In the first cases in this Court construing the Fourteenth Amendment, -decided shortly after its adoption, the Court interpreted it as -proscribing all state-imposed discriminations against the Negro -race.[6] The doctrine of “separate but equal” did not make its -appearance in this Court until 1896 in the case of _Plessy_ v. -_Ferguson_, _supra_, involving not education but transportation.[7] -American courts have since labored with the doctrine for over half -a century. In this Court, there have been six cases involving the -“separate but equal” doctrine in the field of public education.[8] In -_Cumming_ v. _County Board of Education_, 175 U. S. 528, and _Gong -Lum_ v. _Rice_, 275 U. S. 78, the validity of the doctrine itself was -not challenged.[9] In more recent cases, all on the graduate-school -level, inequality was found in that specific benefits enjoyed by -white students were denied to Negro students of the same educational -qualifications. _Missouri ex rel. Gaines_ v. _Canada_, 305 U. S. 337; -_Sipuel_ v. _Oklahoma_, 332 U. S. 631; _Sweatt_ v. _Painter_, 339 U. -S. 629; _McLaurin_ v. _Oklahoma State Regents_, 339 U. S. 637. In -none of these cases was it necessary to re-examine the doctrine to -grant relief to the Negro plaintiff. And in _Sweatt_ v. _Painter_, -_supra_, the Court expressly reserved decision on the question -whether _Plessy_ v. _Ferguson_ should be held inapplicable to public -education. - -In the instant cases, that question is directly presented. Here, -unlike _Sweatt_ v. _Painter_, there are findings below that the -Negro and white schools involved have been equalized, or are being -equalized, with respect to buildings, curricula, qualifications and -salaries of teachers, and other “tangible” factors.[10] Our decision, -therefore, cannot turn on merely a comparison of these tangible -factors in the Negro and white schools involved in each of the cases. -We must look instead to the effect of segregation itself on public -education. - -In approaching this problem, we cannot turn the clock back to 1868 -when the Amendment was adopted, or even to 1896 when _Plessy_ v. -_Ferguson_ was written. We must consider public education in the -light of its full development and its present place in American life -throughout the Nation. Only in this way can it be determined if -segregation in public schools deprives these plaintiffs of the equal -protection of the laws. - -Today, education is perhaps the most important function of state and -local governments. Compulsory school attendance laws and the great -expenditures for education both demonstrate our recognition of the -importance of education to our democratic society. It is required -in the performance of our most basic public responsibilities, even -service in the armed forces. It is the very foundation of good -citizenship. Today it is a principal instrument in awakening the -child to cultural values, in preparing him for later professional -training, and in helping him to adjust normally to his environment. -In these days, it is doubtful that any child may reasonably be -expected to succeed in life if he is denied the opportunity of an -education. Such an opportunity, where the state has undertaken to -provide it, is a right which must be made available to all on equal -terms. - -We come then to the question presented: Does segregation of children -in public schools solely on the basis of race, even though the -physical facilities and other “tangible” factors may be equal, -deprive the children of the minority group of equal educational -opportunities? We believe that it does. - -In _Sweatt_ v. _Painter_, _supra_, in finding that a segregated -law school for Negroes could not provide them equal educational -opportunities, this Court relied in large part on “those qualities -which are incapable of objective measurement but which make for -greatness in a law school.” In _McLaurin_ v. _Oklahoma State -Regents_, _supra_, the Court, in requiring that a Negro admitted to -a white graduate school be treated like all other students, again -resorted to intangible considerations: “ ... his ability to study, to -engage in discussions and exchange views with other students, and, -in general, to learn his profession.” Such considerations apply with -added force to children in grade and high schools. To separate them -from others of similar age and qualifications solely because of their -race generates a feeling of inferiority as to their status in the -community that may affect their hearts and minds in a way unlikely -ever to be undone. The effect of this separation on their educational -opportunities was well stated by a finding in the Kansas case by a -court which nevertheless felt compelled to rule against the Negro -plaintiffs: - - Segregation of white and colored children in public schools has a - detrimental effect upon the colored children. The impact is greater - when it has the sanction of the law; for the policy of separating - the races is usually interpreted as denoting the inferiority of - the Negro group. A sense of inferiority affects the motivation of - a child to learn. Segregation with the sanction of law, therefore, - has a tendency to [retard] the educational and mental development - of Negro children and to deprive them of some of the benefits they - would receive in a racial[ly] integrated school system.[11] - -Whatever may have been the extent of psychological knowledge at the -time of _Plessy_ v. _Ferguson_, this finding is amply supported by -modern authority.[12] Any language in _Plessy_ v. _Ferguson_ contrary -to this finding is rejected. - -We conclude that in the field of public education the doctrine of -“separate but equal” has no place. Separate educational facilities -are inherently unequal. Therefore, we hold that the plaintiffs and -others similarly situated for whom the actions have been brought are, -by reason of the segregation complained of, deprived of the equal -protection of the laws guaranteed by the Fourteenth Amendment. This -disposition makes unnecessary any discussion whether such segregation -also violates the Due Process Clause of the Fourteenth Amendment.[13] - -Because these are class actions, because of the wide applicability -of this decision, and because of the great variety of local -conditions, the formulation of decrees in these cases presents -problems of considerable complexity. On reargument, the consideration -of appropriate relief was necessarily subordinated to the primary -question--the constitutionality of segregation in public education. -We have now announced that such segregation is a denial of the -equal protection of the laws. In order that we may have the full -assistance of the parties in formulating decrees, the cases will be -restored to the docket, and the parties are requested to present -further argument on Questions 4 and 5 previously propounded by the -Court for the reargument this Term.[14] The Attorney General of the -United States is again invited to participate. The Attorneys General -of the states requiring or permitting segregation in public education -will also be permitted to appear as _amici curiae_ upon request to -do so by September 15, 1954, and submission of briefs by October 1, -1954.[15] - - _It is so ordered._ - - - - - BOLLING et al. v. SHARPE et al. - [347 U. S. 497] - - CERTIORARI TO THE UNITED STATES COURT - OF APPEALS FOR THE - DISTRICT OF COLUMBIA CIRCUIT - - Argued December 10-11, 1952.--Reargued December 8-9, - 1953.--Decided May 17, 1954. - -MR. CHIEF JUSTICE WARREN delivered the opinion of the Court. - -This case challenges the validity of segregation in the public -schools of the District of Columbia. The petitioners, minors of the -Negro race, allege that such segregation deprives them of due process -of law under the Fifth Amendment. They were refused admission to a -public school attended by white children solely because of their -race. They sought the aid of the District Court for the District -of Columbia in obtaining admission. That court dismissed their -complaint. The Court granted a writ of certiorari before judgment in -the Court of Appeals because of the importance of the constitutional -question presented. 344 U. S. 873. - -We have this day held that the Equal Protection Clause of the -Fourteenth Amendment prohibits the states from maintaining racially -segregated public schools.[16] The legal problem in the District of -Columbia is somewhat different, however. The Fifth Amendment, which -is applicable in the District of Columbia, does not contain an equal -protection clause as does the Fourteenth Amendment which applies only -to the states. But the concepts of equal protection and due process, -both stemming from our American ideal of fairness, are not mutually -exclusive. The “equal protection of the laws” is a more explicit -safeguard of prohibited unfairness than “due process of law,” and, -therefore, we do not imply that the two are always interchangeable -phrases. But, as this Court has recognized, discrimination may be so -unjustifiable as to be violative of due process.[17] - -Classifications based solely upon race must be scrutinized with -particular care, since they are contrary to our traditions and -hence constitutionally suspect.[18] As long ago as 1896, this Court -declared the principle “that the Constitution of the United States, -in its present form, forbids, so far as civil and political rights -are concerned, discrimination by the General Government, or by -the States, against any citizen because of his race.”[19] And in -_Buchanan_ v. _Warley_, 245 U. S. 60, the Court held that a statute -which limited the right of a property owner to convey his property -to a person of another race was, as an unreasonable discrimination, -a denial of due process of law. - -Although the Court has not assumed to define “liberty” with any great -precision, that term is not confined to mere freedom from bodily -restraint. Liberty under law extends to the full range of conduct -which the individual is free to pursue, and it cannot be restricted -except for a proper governmental objective. Segregation in public -education is not reasonably related to any proper governmental -objective, and thus it imposes on Negro children of the District of -Columbia a burden that constitutes an arbitrary deprivation of their -liberty in violation of the Due Process Clause. - -In view of our decision that the Constitution prohibits the states -from maintaining racially segregated public schools, it would be -unthinkable that the same Constitution would impose a lesser duty on -the Federal Government.[20] We hold that racial segregation in the -public schools of the District of Columbia is a denial of the due -process of law guaranteed by the Fifth Amendment to the Constitution. - -For the reasons set out in _Brown_ v. _Board of Education_, this case -will be restored to the docket for reargument on Questions 4 and 5 -previously propounded by the Court. 345 U. S. 972. - - _It is so ordered._ - - - - - BROWN et al. v. BOARD OF EDUCATION OF - TOPEKA et al. - - [Supplementary opinion of May 31, 1955] - [349 U. S. 294] - -MR. CHIEF JUSTICE WARREN delivered the opinion of the Court. - -These cases were decided on May 17, 1954. The opinions of that -date,[21] declaring the fundamental principle that racial -discrimination in public education is unconstitutional, are -incorporated herein by reference. All provisions of federal, state, -or local law requiring or permitting such discrimination must yield -to this principle. There remains for consideration the manner in -which relief is to be accorded. - -Because these cases arose under different local conditions and their -disposition will involve a variety of local problems, we requested -further argument on the question of relief.[22] In view of the -nationwide importance of the decision, we invited the Attorney -General of the United States and the Attorneys General of all states -requiring or permitting racial discrimination in public education -to present their views on that question. The parties, the United -States and the States of Florida, North Carolina, Arkansas, Oklahoma, -Maryland, and Texas filed briefs and participated in the oral -argument. - -These presentations were informative and helpful to the Court in -its consideration of the complexities arising from the transition -to a system of public education freed of racial discrimination. The -presentations also demonstrated that substantial steps to eliminate -racial discrimination in public schools have already been taken, -not only in some of the communities in which these cases arose, but -in some of the states appearing as _amici curiae_, and in other -states as well. Substantial progress has been made in the District -of Columbia and in the communities in Kansas and Delaware involved -in this litigation. The defendants in the cases coming to us from -South Carolina and Virginia are awaiting the decision of this Court -concerning relief. - -Full implementation of these constitutional principles may require -solution of varied local school problems, School authorities have the -primary responsibility for elucidating, assessing, and solving these -problems; courts will have to consider whether the action of school -authorities constitutes good faith implementation of the governing -constitutional principles. Because of their proximity to local -conditions and the possible need for further hearings, the courts -which originally heard these cases can best perform this judicial -appraisal. Accordingly, we believe it appropriate to remand the cases -to those courts.[23] - -In fashioning and effectuating the decrees, the courts will be -guided by equitable principles. Traditionally, equity has been -characterized by a practical flexibility in shaping its remedies[24] -and by a facility for adjusting and reconciling public and private -needs.[25] These cases call for the exercise of these traditional -attributes of equity power. At stake is the personal interest of the -plaintiffs in admission to public schools as soon as practicable -on a nondiscriminatory basis. To effectuate this interest may call -for elimination of a variety of obstacles in making the transition -to school systems operated in accordance with the constitutional -principles set forth in our May 17, 1954, decision. Courts of equity -may properly take into account the public interest in the elimination -of such obstacles in a systematic and effective manner. But it -should go without saying that the vitality of these constitutional -principles cannot be allowed to yield simply because of disagreement -with them. - -While giving weight to these public and private considerations, the -courts will require that the defendants make a prompt and reasonable -start toward full compliance with our May 17, 1954, ruling. Once such -a start has been made, the courts may find that additional time is -necessary to carry out the ruling in an effective manner. The burden -rests upon the defendants to establish that such time is necessary in -the public interest and is consistent with good faith compliance at -the earliest practicable date. To that end, the courts may consider -problems related to administration, arising from the physical -condition of the school plant, the school transportation system, -personnel, revision of school districts and attendance areas into -compact units to achieve a system of determining admission to the -public schools on a nonracial basis, and revision of local laws and -regulations which may be necessary in solving the foregoing problems. -They will also consider the adequacy of any plans the defendants may -propose to meet these problems and to effectuate a transition to -a racially nondiscriminatory school system. During this period of -transition, the courts will retain jurisdiction of these cases. - -The judgments below, except that in the Delaware case, are -accordingly reversed and the cases are remanded to the District -Courts to take such proceedings and enter such orders and decrees -consistent with this opinion as are necessary and proper to admit -to public schools on a racially nondiscriminatory basis with all -deliberate speed the parties to these cases. The judgment in the -Delaware case--ordering the immediate admission of the plaintiffs -to schools previously attended only by white children--is affirmed -on the basis of the principles stated in our May 17, 1954, opinion, -but the case is remanded to the Supreme Court of Delaware for such -further proceedings as that Court may deem necessary in light of this -opinion. - - _It is so ordered._ - - - - -A BIBLIOGRAPHICAL NOTE - - -There stands in the Grove of Academe, or so I have often imagined, -a certain idolatrous image. It is a crane-like creature with italic -wings, the great god _Ibid._, and before it, strutting on their -tiny six-point feet, the pedant peacocks daily make obeisance. They -look up, _supra_, and down _infra_, and spreading their tails with -asterisk eyes, they march with robed scholars to lay garlands of _op. -cit._ upon the ritual shrine. - -When I launched into this book, I swore a blasphemous oath upon such -phony veneration. After a long life of reading footnotes, and reading -them religiously, I have concluded that 98.2 per cent of them are so -much flummery: They are showin’ off befo’ God. Thus I had not planned -upon notes or bibliography, and this extended note is afterthought; -it is the reluctant consequence of listening to beguiling editors. -They said: Where did you get all this stuff? Whence these bizarre -ideas? They said: Serious students will want to know where to get -supporting material intended to prove (a) that you are a fraud, -or (b) that there may be something to the Southern position after -all. You ought to gird up your Gothic archness with a few flying -buttresses of attribution. And in a moment of weakness, I said very -well. - -The figures on population, area, wages, housing, and the like, in the -opening pages of this book, come primarily from the 1960 Census and -the _Statistical Abstract of the United States for 1961_. The Census -people have a diabolical genius for presenting their data in the -least usable possible form, but they have a monopoly on the figures -and no other source exists. - -As for the nature of the South: Almost every Southerner who writes -for a living at one time or another has wooed this elusive theme. I -would suggest that a student start with W. J. Cash’s _The Mind of -the South_, not because I agree with everything Cash had to say, -but because his brief star flashed with a rare brilliance across -the Southern sky. The Knopf edition of 1941 is now available in a -Doubleday Anchor paperback, and though parts of it are dated, it -continues to offer a good basic foundation. Then, at random, William -Alexander Percy’s _Lanterns on the Levee_, and David Cohn’s _Where -I Was Born and Raised_. The late William Polk of Greensboro, N.C., -was a delightful gentleman; during an editorial writers’ convention -in Boston, we once talked of the South’s problems between the bumps -and grinds of an Old Howard Burly-Q. His book, _Southern Accent_ -(1953) is fine background reading. Although they are hard to find, -Ward Allison Dorrance’s several books on Southern rivers are worth -the effort. Some good essays appear in _The Lasting South_ (1957), a -collection edited largely by Louis D. Rubin, Jr., though my own name -is on the spine too. - -A great many other books about the South come to mind. Henry Grady’s -_The New South_, published in 1890, is almost indispensable. Another -necessary work, of seminal influence, is the Agrarians’ _I’ll Take -My Stand_ of 1930. I come back frequently to Matthew Page Andrews’ -_Virginia, The Old Dominion_. C. Vann Woodward’s several books are -useful: _The Burden of Southern History_, _Origins of the New South_, -and _The Strange Career of Jim Crow_. The serious student’s reading -list would find a place for _Seeds of Time_, by Henry Savage, Jr.; -_Southern Tradition and Regional Progress_, by William H. Nicholls; -_The Southern Heritage_, by James McBride Dabbs, and _Goodbye to -Uncle Tom_, by J. C. Furnas. Thomas D. Clark’s _The Emerging South_ -is good on economic history. Virginius Dabney’s _Below the Potomac_, -published in 1942, remains a solid work. Bernard Robb’s _Welcum -Hinges_ is at once gentle and delightful. The student should not pass -by Harry Ashmore’s _Epitaph for Dixie_ (1958) and _The Other Side of -Jordan_ (1960). And of course, before it gets overlooked by reason -of its bulk and importance, the multi-volumed history of the South -emerging from Louisiana State University Press is a primary reference. - -Many of the foregoing titles--alas, almost all of them--are the work -of Southern Liberals. And I do not seem to have mentioned P. D. -East’s _The Magnolia Jungle_, or Hodding Carter’s _Southern Legacy_ -and _Where the Main Street Meets the River_, and _The South Strikes -Back_, or Robert Penn Warren’s _Segregation_, or Jonathan Daniels’ -_A Southerner Discovers the South_ and _Frontier on the Potomac_. -Nearly all the recent crop of books are cast in molds more liberal -yet: Carl T. Rowan’s _Go South to Sorrow_; John Howard Griffin’s -_Black Like Me_, and Richard Wright’s _White Man, Listen!_ Wilma -Dykeman and James Stokely have co-authored two books worth serious -thought: _Neither Black nor White_, and _Seeds of Southern Change_. -A student’s shelf should leave a place for William Peters’ _The -Southern Temper_. Several books of largely contemporary, topical -interest should be read: Martin Luther King’s account of the -Montgomery boycott, _Stride Toward Freedom_; Bishop Robert R. Brown’s -_Bigger Than Little Rock_; Virgil T. Blossom’s _It Has Happened -Here_; and John Bartlow Martin’s generally well-balanced _The Deep -South Says Never_. Martin’s book is the work of a professional -reporter. Most of the rest of the books mentioned in this paragraph -annoyed the hell out of me. - -Against this monstrous amount of sack, one finds but a penny’s worth -of bread. The conservative South has not lacked willing spokesmen; -it has lacked agreeable publishers. A bare handful of works present -a contrary view, and some of these--Herman Talmadge’s _You and -Segregation_, and W. E. Debnam’s impudent _Weep No More, My Lady_, -and _My Old Kentucky Home, Good Night_--are in paperback. The scant -list of hardcover works espousing the point of view of several -million white Southerners includes only Bill Workman’s _The Case -for the South_ (1960), Carleton Putnam’s _Race and Reason, a Yankee -View_, and my own _The Sovereign States_ (1957), a book I still like -very much. (There is also Charles P. Bloch’s lawyerly _States Rights: -The Law of the Land_, but that probably should be mentioned later in -books on legal aspects of the question.) - -One scarcely knows where to begin on books dealing with the Negro -as such. The literature in this field is unending. In fairness, -the student should seek out a couple of books that advance the -traditional Southern view: Earnest Sevier Cox’s _White America_ -(1923) and, from as far back as 1910, E. H. Randle’s slim -_Characteristics of the Southern Negro_. In the same year that Randle -wrote his book, an English critic, William Archer, brought forth -_Through Afro-America_. These three works are period pieces now, but -they still have value. - -I have relied heavily in writing this book on Nathaniel Weyl’s _The -Negro in American Civilization_. Needless to say, a hundred other -works are arrayed against his point of view. The student doubtless -will have to begin with almost anything from W. E. B. DuBois, keeping -in mind that DuBois, the grand old Red of the NAACP, formally joined -the Communist Party in 1961. His works are important, nonetheless. -Jerome Dowd’s _The Negro in American Life_ (1926) is long, and -outdated, but still most useful. A thoughtful reader will find a few -hours for Tuskegee’s Robert R. Moton; his autobiography of 1920, -_Finding a Way Out_, even then predicted a day when the white South -would “stop feeling and begin thinking” about its Negro problem, -and his _What the Negro Thinks_ (1929) offers an insight into the -continuing nature of Negro goals. A more militant work by the NAACP’s -James Weldon Johnson, _Negro Americans, What Now?_ appeared in 1934. -And thinking of the NAACP, Mary White Ovington’s _The Walls Came -Tumbling Down_ (1947) contains some material not available elsewhere. - -Of more recent vintage, half a dozen studies of the Negro deserve -mention as reference works. Primus, of course, the monumental (and -monumentally unreadable) work of Gunnar Myrdal and his associates, -_An American Dilemma_. There are said to be eleven persons in the -United States, apart from the collaborators, who have read the -whole two volumes; I am not among them. But I ploughed through most -of it. Arnold Rose, Myrdal’s chief assistant, has brought out a -condensation, published in 1948 as _The Negro in America_. Rayford -W. Logan of Howard University, one of the most prolific writers in -the field, has produced a number of works of substantial value, among -them _The Negro in American Life and Thought_ and _The Negro in the -Postwar World_. His colleague, Edward Franklin Frazier, also has -published extensively; his _The Negro in the United States_ (1957) -is quite useful. Still another Negro writer, Arna Werdell Bontemps, -should be consulted through her _100 Years of Negro Freedom_. An -interesting work that I came across after this manuscript was -finished is Gilbert Franklin Edwards’ _The Negro Professional Class_ -(1959). - -In the narrower field of political action, the general reader should -begin with V. O. Key’s major work, _Southern Politics in State and -Nation_, which sets the scene, and then go back to William Felbert -Nowlin’s work of 1931, _The Negro in American National Politics_. A -good contemporary work is _The Negro and Southern Politics_, by Hugh -Douglas White. Of less value, in part because of its arrogant tone, -is Henry Lee Moon’s polemical _Balance of Power: The Negro Vote_ -(a typical reference is to the “political zombies who infest the -sub-Potomac region”). Report of the Civil Rights Commission and the -Southern Regional Council are indispensable. - -For the absolute amateur, coming cold into the field of anthropology, -E. E. Evans-Pritchard’s BBC lectures, _Social Anthropology_, offer -a most congenial introduction. This should be followed, I suggest, -by Alfred Louis Kroeber’s _Anthropology_, originally published in -1923 and updated in 1948. It is hard work. Then, in a hard-driving -rush: Ralph Linton’s _The Tree of Culture_, Carleton S. Coon’s _The -Story of Man_, Hooton’s _Apes, Men and Morons_ and _Up from the -Ape_, Clyde Kluckhohn’s _Mirror for Man_; almost anything by Toynbee -and Breasted; and warming to the more immediate theme, Franz Boas’ -_Anthropology and Modern Life_ (1928) and his _Race, Language and -Culture_ (1940). Boas was the great-granddaddy of the whole Liberal -movement in social anthropology; he influenced a generation or more -of dutiful followers. Melville Herskovits, of Northwestern, has -written (1943) an agreeable biography of him. It merits a reading. -And so do Herskovits’ own works, _The American Negro_ (1928) and his -more definitive _The Myth of the Negro Past_ (1958). Otto Klineberg’s -works are important: _Negro Intelligence and Selective Migration_ -(1935) and the useful anthology, _Characteristics of the American -Negro_ (1944). The famous UNESCO pamphlet on race has been covered -in the text; Ruth Benedict and Gene Weltfish belong in a footnote. -A very small footnote. Ashley Montagu, a monstrously irritating -man, has to be read, or at least scratched: _Man: His First Million -Years_, _Human Heredity_, and _Man in Process_. This last work I -fetched home only a week ago. I do not like Ashley Montagu. Langston -Hughes’ _African Treasury_ is about what you would imagine Hughes -would put out. Better, on African background, are John Coleman -De Graft-Johnson’s _African Glory: The Story of Vanished Negro -Civilizations_ (1955) and Maurice Delafosse’s _The Negroes of Africa_ -(1931). But the bibliography in this area is extensive, and it grows -more rapturous all the time. _The African Colonization Movement_, -by P. J. Staudenraus (1961) is as good a roundup of this early -nineteenth-century movement as I have come across. - -In the text, I have called attention to Dr. Audrey M. Shuey’s -_Testing of Negro Intelligence_. Let me call repeated attention to -it here. This is an indispensable reference work, of unimpeachable -integrity, for any student who proposes seriously to investigate -Negro scores on intelligence tests. The student also should seek out -Dr. Henry E. Garrett’s _Great Experiments in Psychology_ (1951), and -he should get his subscription in to _Mankind Quarterly_, 1 Darnaway -St., Edinburgh 3, Scotland. At the University of Chicago, Dr. Dwight -J. Ingle has demonstrated a fierce and wonderful courage in admitting -unorthodox views to his _Perspectives in Biology and Medicine_, in -which Dr. Montagu has been recently skewered. - -This gets me, by hop, skip and jump, to reference works in the area -of Constitutional history, law, and contemporary politics. The -_Federalist_, of course. Elliot’s _Debates_. Madison’s _Notes_. -Tocqueville. Jefferson’s Letters. Madison. There is no stopping -point. The biographies of Marshall and Washington. James Morton -Smith’s _Freedom’s Fetters_. Bibliography is futile. The student of -the Constitution will read a thousand works, and then read a thousand -more. He shouldn’t miss Charles Warren’s _The Supreme Court in U.S. -History_. Yale’s Fred Rodell is a derisive fellow; his _Nine Men_ -is a fine, extended raspberry cheer, but it should be read. Most -of the members of the Court have been loquacious; they cannot keep -their tongues tied down. The law reviews fairly bulge with important -material. Robert B. McKay’s long essay in the _New York University -Law Review_ (June, 1956) is no help to my position, but it merits a -reading. Basic source material, of course, is available through the -indispensable _Race Relations Law Reporter_. The student interested -in getting both sides of this dispute should look up Senator -Eastland’s “Era of Judicial Tyranny,” available through the Citizens -Council, and Alfred J. Schweppe’s article in the American Bar -Association’s _Journal_ of February, 1958, “Enforcement of Federal -Court Decrees.” On the question of private schools, a biased and -snippy book by Donald Ross and Warren E. Gauerke, _If the Schools Are -Closed_, merits a reading. The two Emory professors are anti-private -school, but the source material is there. I have already mentioned -Charles J. Bloch’s _States Rights: The Law of the Land_; it is a -first-rate piece of work. - -On the Fourteenth Amendment: Joseph B. James’ work is basic, _The -Framing of the Fourteenth Amendment_ (1956). See also Walter J. -Suthon’s article in the _Tulane Law Review_ at December, 1953, “The -Dubious Origin of the Fourteenth Amendment”; Horace E. Flack’s “The -Adoption of the Fourteenth Amendment,” in _John Hopkins Studies_ -(1908), and Joseph F. Ingham’s “Unconstitutional Amendments,” in the -_Dickinson Law Review_ of March, 1929, among many other sources. - -It is futile to attempt any bibliographical note on the specific -subject of school desegregation since 1954. The library of the -Southern Educational Reporting Service in Nashville is a storehouse -of material to be found nowhere else. I am indebted to Reed Sarratt -and his associates there for making its riches available to me. -Don Shoemaker’s _With All Deliberate Speed_; Harry Ashmore’s _The -Negro and the Schools_; and _Public Education in the South Today -and Tomorrow_, by Ernst W. Swanson and John A. Griffin (1955), are -basic references. Any serious study must take in the annual reports -of the various Southern State superintendents of public education. -Bill Simmons, the urbane and immensely attractive executive director -of the Citizens Council in Jackson, Miss., has a wealth of material -available; student debaters who get stuck with the Southern side of -the question should not hesitate to write him at the Plaza Building -in Jackson. - -This is about all the bibliography I am up to. Any student who -delves into this subject necessarily will resort immediately to -the Periodical Index. It teems with magazine references. Offhand, I -know of not more than a dozen articles that present some aspects of -the traditional Southern view--this, out of _more than two thousand_ -indexed articles supporting the integrationist view since 1954. Look -them up: Clifford Dowdey, in _Saturday Review_ of Oct. 9, 1954; -Senator Ervin, in _Look_ of April 3, 1956; Herbert Ravebel Sass, -in _Atlantic_ of November 1956; Tom Waring, in _Harper’s_, January -1956; Virginius Dabney, in _Life_ of Sept. 22, 1958; William F. -Buckley, Jr., in _Saturday Review_ of Nov. 11, 1961; Perry Morgan, -in _Esquire_ for January, 1962; Donald R. Davidson in the _Star -Weekly Magazine_ for Nov. 9, 1957. There may have been a few others. -The Citizens Council has a wealth of pamphlets, booklets, and other -ephemera available to the student who troubles to ask for reference -material. And of course the microfilmed resources of the Southern -Educational Reporting Service are invaluable. - -I owe thanks to my right arm, Ann Lloyd Merriman; and to my publisher -in Richmond, D. Tennant Bryan; and to the librarians of the State Law -Library, the Library of Congress, and the state and city libraries -in Richmond; to my congenial masters at Collier Books; to Dr. Henry -E. Garrett; to John Riely, attorney, who made available to me the -briefs of all parties in the School Segregation Cases; to various -antagonists of the NAACP, among them Thurgood Marshall and Spotswood -Robinson III. And the day this book appears, in glancing over this -incomplete and sketchy note, I will think of a hundred other sources -and mentors to whom I shall ever be - - Gratefully theirs, - J.J.K. - -July, 1962. - - -FOOTNOTES: - -[1] Together with No. 2, _Briggs et al._ v. _Elliott et al._, on -appeal from the United States District Court for the Eastern District -of South Carolina, argued December 9-10, 1952, reargued December -7-8, 1953; No. 4, _Davis et al._ v. _County School Board of Prince -Edward County, Virginia, et al._, on appeal from the United States -District Court for the Eastern District of Virginia, argued December -10, 1952, reargued December 7-8, 1953; and No. 10, _Gebhart et al_. -v. _Belton et al._, on certiorari to the Supreme Court of Delaware, -argued December 11, 1952, reargued December 9, 1953. - -[2] In the Kansas case, _Brown_ v. _Board of Education_, the -plaintiffs are Negro children of elementary-school age residing -in Topeka. They brought this action in the United States District -Court for the District of Kansas to enjoin enforcement of a Kansas -statute which permits, but does not require, cities of more than -15,000 population to maintain separate school facilities for Negro -and white students. Kan. Gen. Stat. § 72-1724 (1949). Pursuant to -that authority, the Topeka Board of Education elected to establish -segregated elementary schools. Other public schools in the community, -however, are operated on a nonsegregated basis. The three-judge -District Court, convened under 28 U. S. C. §§ 2281 and 2284, found -that segregation in public education has a detrimental effect upon -Negro children, but denied relief on the ground that the Negro and -white schools were substantially equal with respect to buildings, -transportation, curricula, and educational qualifications of -teachers. 98 F. Supp. 797. The case is here on direct appeal under 28 -U. S. C. § 1253. - -In the South Carolina case, _Briggs_ v. _Elliott_, the plaintiffs -are Negro children of both elementary and high school age residing -in Clarendon County. They brought this action in the United States -District Court for the Eastern District of South Carolina to enjoin -enforcement of provisions in the state constitution and statutory -code which require the segregation of Negroes and whites in public -schools. S. C. Const., Art. XI, § 7; S. C. Code § 5377 (1942). The -three-judge District Court, convened under 28 U. S. C. §§ 2281 and -2284, denied the requested relief. The court found that the Negro -schools were inferior to the white schools and ordered the defendants -to begin immediately to equalize the facilities. But the court -sustained the validity of the contested provisions and denied the -plaintiffs admission to the white schools during the equalization -program. 98 F. Supp. 529. This Court vacated the District Court’s -judgment and remanded the case for the purpose of obtaining the -court’s views on a report filed by the defendants concerning the -progress made in the equalization program. 342 U. S. 350. On remand, -the District Court found that substantial equality had been achieved -except for buildings and that the defendants were proceeding to -rectify this inequality as well. 103 F. Supp. 920. The case is again -here on direct appeal under 28 U. S. C. § 1253. - -In the Virginia case, _Davis_ v. _County School Board_, the -plaintiffs are Negro children of high school age residing in Prince -Edward County. They brought this action in the United States District -Court for the Eastern District of Virginia to enjoin enforcement of -provisions in the state constitution and statutory code which require -the segregation of Negroes and whites in public schools. Va. Const., -§ 140; Va. Code § 22-221 (1950). The three-judge District Court, -convened under 28 U. S. C. §§ 2281 and 2284, denied the requested -relief. The court found the Negro school inferior in physical plant, -curricula, and transportation, and ordered the defendants forthwith -to provide substantially equal curricula and transportation and to -“proceed with all reasonable diligence and dispatch to remove” the -inequality in physical plant. But, as in the South Carolina case, the -court sustained the validity of the contested provisions and denied -the plaintiffs admission to the white schools during the equalization -program. 103 F. Supp. 337. The case is here on direct appeal under 28 -U. S. C. § 1253. - -In the Delaware case, _Gebhart_ v. _Belton_, the plaintiffs are -Negro children of both elementary and high school age residing -in New Castle County. They brought this action in the Delaware -Court of Chancery to enjoin enforcement of provisions in the state -constitution and statutory code which require the segregation of -Negroes and whites in public schools. Del. Const., Art. X, § 2; -Del. Rev. Code § 2631 (1935). The Chancellor gave judgment for -the plaintiffs and ordered their immediate admission to schools -previously attended only by white children, on the ground that -the Negro schools were inferior with respect to teacher training, -pupil-teacher ratio, extracurricular activities, physical plant, and -time and distance involved in travel. 87 A. 2d 862. The Chancellor -also found that segregation itself results in an inferior education -for Negro children (see note 10, _infra_,), but did not rest his -decision on that ground. _Id._, at 865. The Chancellor’s decree was -affirmed by the Supreme Court of Delaware, which intimated, however, -that the defendants might be able to obtain a modification of the -decree after equalization of the Negro and white schools had been -accomplished. 91 A. 2d 137, 152. The defendants, contending only that -the Delaware courts had erred in ordering the immediate admission of -the Negro plaintiffs to the white schools, applied to this Court for -certiorari. The writ was granted, 344 U. S. 891. The plaintiffs, who -were successful below, did not submit a cross-petition. - -[3] 344 U. S. 1, 141, 891. - -[4] 345 U. S. 972. The Attorney General of the United States -participated both Terms as _amicus curiae_. - -[5] For a general study of the development of public education prior -to the Amendment, see Butts and Cremin, A History of Education in -American Culture (1953), Pts. I, II; Cubberley, Public Education in -the United States (1934 ed.), cc. II-XII. School practices current at -the time of the adoption of the Fourteenth Amendment are described in -Butts and Cremin, supra, at 269-275; Cubberley, _supra_, at 288-339, -408-431; Knight, Public Education in the South (1922), cc. VIII, IX. -See also H. Ex. Doc. No. 315, 41st Cong., 2d Sess. (1871). Although -the demand for free public schools followed substantially the same -pattern in both the North and the South, the development in the -South did not begin to gain momentum until about 1850, some twenty -years after that in the North. The reasons for the somewhat slower -development in the South (_e.g._, the rural character of the South -and the different regional attitudes toward state assistance) are -well explained in Cubberley, _supra_, at 408-423. In the country as -a whole, but particularly in the South, the War virtually stopped -all progress in public education. _Id._, at 427-428. The low status -of Negro education in all sections of the country, both before and -immediately after the War, is described in Beale, A History of -Freedom of Teaching in American Schools (1941), 112-132, 175-195. -Compulsory school attendance laws were not generally adopted until -after the ratification of the Fourteenth Amendment, and it was not -until 1918 that such laws were in force in all the states. Cubberley, -_supra_, at 563-565. - -[6] _Slaughter-House Cases_, 16 Wall. 36, 67-72 (1873); _Strauder_ v. -_West Virginia_, 100 U. S. 303, 307-308 (1880): - -“It ordains that no State shall deprive any person of life, liberty, -or property, without due process of law, or deny to any person within -its jurisdiction the equal protection of the laws. What is this -but declaring that the law in the States shall be the same for the -black as for the white; that all persons, whether colored or white, -shall stand equal before the laws of the States, and, in regard to -the colored race, for whose protection the amendment was primarily -designed, that no discrimination shall be made against them by law -because of their color? The words of the amendment, it is true, are -prohibitory, but they contain a necessary implication of a positive -immunity, or right, most valuable to the colored race,--the right to -exemption from unfriendly legislation against them distinctively as -colored,--exemption from legal discriminations, implying inferiority -in civil society, lessening the security of their enjoyment of the -rights which others enjoy, and discriminations which are steps -towards reducing them to the condition of a subject race.” - -See also _Virginia_ v. _Rives_, 100 U. S. 313, 318 (1880); _Ex parte -Virginia_, 100 U. S. 339, 344-345 (1880). - -[7] The doctrine apparently originated in _Roberts_ v. _City of -Boston_, 59 Mass. 198, 206 (1850), upholding school segregation -against attack as being violative of a state constitutional guarantee -of equality. Segregation in Boston public schools was eliminated in -1855. Mass. Acts 1855, c. 256. But elsewhere in the North segregation -in public education has persisted in some communities until recent -years. It is apparent that such segregation has long been a -nationwide problem, not merely one of sectional concern. - -[8] See also _Berea College_ v. _Kentucky_, 211 U. S. 45 (1908). - -[9] In the _Cumming_ case, Negro taxpayers sought an injunction -requiring the defendant school board to discontinue the operation of -a high school for white children until the board resumed operation of -a high school for Negro children. Similarly, in the _Gong Lum_ case, -the plaintiff, a child of Chinese descent, contended only that state -authorities had misapplied the doctrine by classifying him with Negro -children and requiring him to attend a Negro school. - -[10] In the Kansas case, the court below found substantial equality -as to all such factors. 98 F. Supp. 797, 798. In the South Carolina -case, the court below found that the defendants were proceeding -“promptly and in good faith to comply with the court’s decree.” 103 -F. Supp. 920, 921. In the Virginia case, the court below noted that -the equalization program was already “afoot and progressing” (103 F. -Supp. 337, 341); since then, we have been advised, in the Virginia -Attorney General’s brief on reargument, that the program has now been -completed. In the Delaware case, the court below similarly noted that -the state’s equalization program was well under way. 91 A. 2d 137, -149. - -[11] A similar finding was made in the Delaware case: “I conclude -from the testimony that in our Delaware society, State-imposed -segregation in education itself results in the Negro children, as a -class, receiving educational opportunities which are substantially -inferior to those available to white children otherwise similarly -situated.” 87 A. 2d 862, 865. - -[12] K. B. Clark, Effect of Prejudice and Discrimination on -Personality Development (Midcentury White House Conference on -Children and Youth, 1950); Witmer and Kotinsky, Personality in the -Making (1952), c. VI; Deutscher and Chein, The Psychological Effects -of Enforced Segregation: A Survey of Social Science Opinion, 26 -J. Psychol. 259 (1948); Chein, What are the Psychological Effects -of Segregation Under Conditions of Equal Facilities?, 3 Int. J. -Opinion and Attitude Res. 229 (1949); Brameld, Educational Costs, -in Discrimination and National Welfare (MacIver, ed., 1949), 44-48; -Frazier, The Negro in the United States (1949), 674-681. And see -generally Myrdal, An American Dilemma (1944). - -[13] See _Bolling_ v. _Sharpe_, _post_, p. 497, concerning the Due -Process Clause of the Fifth Amendment. - -[14] “4. 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 -an effective gradual adjustment to be brought about from existing -segregated systems to a system not based on color distinctions? - -“5. 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?” - -[15] See Rule 42, Revised Rules of this Court (effective July 1, -1954). - -[16] _Brown_ v. _Board of Education_, _ante_, p. 483. - -[17] _Detroit Bank_ v. _United States_, 317 U. S. 329; _Currin_ v. -_Wallace_, 306 U. S. 1, 13-14; _Steward Machine Co._ v. _Davis_, 301 -U. S. 548, 585. - -[18] _Korematsu_ v. _United States_, 323 U. S. 214, 216; -_Hirabayashi_ v. _United States_, 320 U. S. 81, 100. - -[19] _Gibson_ v. _Mississippi_, 162 U. S. 565, 591. Cf. _Steele_ v. -_Louisville & Nashville R. Co._, 323 U. S. 192, 198-199. - -[20] Cf. _Hurd_ v. _Hodge_, 334 U. S. 24. - -[21] 347 U. S. 483; 347 U. S. 497. - -[22] Further argument was requested on the following questions, 347 -U. S. 483, 495-496, n. 13, previously propounded by the Court: - -“4. 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 -an effective gradual adjustment to be brought about from existing -segregated systems to a system not based on color distinctions? - -“5. 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?” - -[23] The cases coming to us from Kansas, South Carolina, and Virginia -were originally heard by three-judge District Courts convened under -28 U. S. C. §§ 2281 and 2284. These cases will accordingly be -remanded to those three-judge courts. See _Briggs_ v. _Elliott_, 342 -U. S. 350. - -[24] See _Alexander_ v. _Hillman_, 296 U. S. 222, 239. - -[25] See _Hecht Co._ v. _Bowles_, 321, U. 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