A Social Revolution?
Because Brown II focused solely on implementation the arguments in the Court demonstrated attention to detail. The Supreme Court and the lower federal courts were equity courts. This gave them a wide range of options to fashion remedies. The issue of time became a key area of concern. Suggestions regarding time ranged from an immediate decree for action to a decree with no fixed date for the end of segregation.
Court arguments
The opening argument before the Court dealt with the Virginia and South Carolina cases. The civil rights attorney representing the Negroes called for desegregation as soon as the necessary administrative procedures could be implemented. The Court, argued Spotswood Robinson III, should remand the case to the court of the first instance to specify the decree. But, he continued, the Court’s decree should contain specified provisions. These provisions should include (1) immediate initiation of administrative procedures and steps toward integration and (2) admission at the coming September term.
Thurgood Marshall advocated a date certain, suggesting September 1, 1956. Marshall also argued that the Court should not take a middle ground between the plaintiffs and the defendants. He stated that constitutional rights should not be postponed.
One of South Carolina’s attorneys made the point that a change of attitude needs to be brought about slowly and noted that the Court’s decision in Brown I was very unpopular. He asked that the Court send the case back without instructions for action. The state’s second attorney said the people have lived in a biracial society for 90 years. Community acceptance was needed because the public needed to continue to support education, and such acceptance required time. The Court should issue no “forthwith” decree and should recognize the need for gradual adjustment.
The attorney for Virginia took a stronger position than the attorneys for South Carolina. He flatly stated that “We cannot foresee any future date when segregation can be solved.” He added that no court decree could be effective if opposed by most of the people. He believed the Court should set no specific direction for the lower courts and should set no definite time limit. He also pointed out that the sociological evidence, which was significant to the Brown I decision, did not show the psychological effect of desegregation on white children. In this context, he discussed the intellectual superiority of whites and the large differences in morals and health standards between whites and Negroes. He concluded by saying that while the Court can tell Virginia what not to do, it cannot tell Virginia what kinds of schools it should have.
Virginia’s attorney General, Lindsay Almond, Jr., made the strongest statement regarding both opposition to immediate action and in support of resistance. Although he recognized Brown I was the law of the land, it did not mean enforced integration to Virginia. All that Brown I required was a change from existing segregation to a system not based on color distinction. He argued the Court has no authority to legislate directly nor to delegate such authority to the district courts.
Almond said, “No blanket forthwith decree entered by any court could possibly to aught but preclude an approach to a solution and not only turn the clock back education-wise, far beyond Plessy v. Ferguson but wreak damage upon the hearts and minds of children…in a way unlikely to be ever undone.” He argued that what the Negroes wanted was “unwarranted and undue force” and for the Court “to press this crown of thorns upon our brow, and hold the hemlock to our lips.”
The U.S. Solicitor General, Simon Sobeloff, argued that the Court would give lower court judges guidance and a push to get desegregation started. He thought it important for the Court to suggest an approach to reduce further litigation and make the states more likely to take implementation steps. He suggested the Court should provide a deadline in the district court of 90 days to submit a plan, a plan that would show good faith advance toward the goal.
Court discussion and decision
The most questions the Court justices asked dealt with the numbers and locations of Negro children and, secondarily, with matters concerning the progress of desegregation, the autonomy of local schools, and the ability of state officials to enforce rules. The wording of the Court’s decree was discussed. The question of time to be allowed generated some discussion.
The Court found writing the degree difficult and seemed very uncertain about how implementation should be handled. Chief Justice Earl Warren and Justices Frankfurter, Black, and Burton also seemed to adopt a go-slow stance. Justice Douglas wanted a cutoff date for segregation Justice Harlan agreed with Warren and Justice Minton was committed to voting with the majority.
Warren’s ideas generally prevailed in the short opinion he wrote in May 1955 for the Court’s 9-0 decision. His opinion first declared that any state statutes that conflicted with the Court’s earlier decision were void. All provisions of federal, state, and local law that either required or permitted racial discrimination in public education must yield to the earlier announced principle that said such discrimination was unconstitutional. School authorities were to be primarily responsible for identifying, assessing, and solving the problems they faced. However, whether their actions constituted good faith implementation was to be determined by the courts. Further, the cases before the Court were remanded to the courts that originally heard the cases. These courts were to be guided by principles of equity. They were to show practical flexibility and an ability to adjust and reconcile public and private needs.
After this opening, Warren’s opinion disposed of the cases before the Court by reversing all the judgments except for the Delaware case. The federal district courts were told, “to take such proceedings and enter such orders as are necessary and proper to admit to public schools on a racially nondiscriminatory basis with all deliberate speed the parties to these cases.”
Clearly, the Court in Brown II did not accept Marshall’s argument against postponing constitutional rights. The fact that the Court in Brown I decided to have a further hearing on implementation suggests that it may have already decided there would not be a forthcoming decision couched with the language of immediate rights. Rather, it appears the Court was willing in Brown I to involve the courts in a slow process of supervising school boards under the umbrella of “with all deliberate speed.”
Criticism of Brown II
Brown II garnered an extensive amount of criticism, much if it from hindsight. Desegregation lost a year between Brown I and Brown II. Brown II further gave the impression that the South could take even much more time before acting on desegregation. Many school boards saw Brown II as evidencing a judicial reluctance to imbalance the status quo. Nonetheless, the intensive resistance to Brown was not immediately apparent. Once the resistance became intense, the Court recognized that it had to proceed with desegregation strategies in a different way.
The idea, accepted by much of the public, that laws are self-executing may have contributed to minimal immediate criticism. Additionally, many people saw the Brown II decision as an appropriate, moderate statement. Few perhaps interpreted the decision as demonstrating much more deliberation than deliberate speed. Even Thurgood Marshall thought not setting a compliance deadline was wise, that it meant southern states could not complain about unrealistic deadlines. The remand to lower courts also meant that courts familiar to the disputants would play a critical role in desegregation. Additionally, perhaps the Court was implicitly signaling that the other branches of government should now become involved in desegregation. But the phrase “with all deliberate speed” more likely triggered the opposite belief.
In short, the most significant criticisms of Brown II are probably these:
- The Court allowed too much time for desegregation – segregationist interpreted the Court’s ambiguity and indecisiveness with a platform on which to increase their resistance to desegregation.
- The Court did not provide clear guidelines regarding what should be done – this resulted in the submission of thousands of plans that contained a huge variety in their promises, many of which did not meet existing judicial standards. District court judges probably preferred mandates that compelled them to act over the responsibility of making choices
- The Court paid too much attention to compliance at the expense of principle, meaning that there was too little moral force behind the decision. Perhaps the Court tried overly hard to be realistic, but this did not help the Court’s reputation.
The immediate reaction to Brown II
As noted above, except for several instances, some of which are identified below, the reaction to Brown II was relatively muted. Shortly after the Brown II decision, a Gallup poll showed that 74% of respondents in both the South and outside South preferred a gradual approach to desegregation. Several major newspapers outside the South supported the opinion. The Wall Street Journal, for example, thought it was a “fair decision and a wise one.” The Los Angeles Times stated that although the decision “will not suit the extremists, … we think most reasonable people will agree with it.” The New York Times said that desegregation “will move too quickly for some among us, perhaps too rapidly for others.”
In an article published in the summer of 1955 in The Journal of Negro Education, Thurgood Marshall and Robert Carter, both of whom were very active in the Brown court proceedings, called the decision a good one. They remarked that the Court’s decision would create “an attitude of quiet confidence.” They thought the opinion “is about effective as one could have expected.”
However, several public comments made by some representatives of the South saw the opinion differently. A Mississippi judge, Tom Brady, who was a graduate of Yale University, quickly produced a document titled Black Monday: Segregation, or Amalgamation … America Has Its Choice. Brady said that defending segregation also meant protecting “the inviolability of Southern Womanhood.” He declared that such protection was vital because the “loveliest and the purist of God’s creation … is a well-bred, cultured Southern white woman or her blue-eyed golden haired little girl.”
Mississippi Senator James Eastland remarked that “Generations of Southerners yet unborn will cherish our memory because they will realize that the fight we now wage [against Brown] will have preserved for them their untainted racial heritage, their culture, and the institutions of the Anglo-Saxon race.”
In the next year, 1956, Jimmy Byrnes, the governor of South Carolina and a former Supreme Court justice, said “the fundamental objection to integration” was the whites’ “fear of mongrelization.” Byrnes continued by saying “Southerners fear that the purpose of those who lead the fight for integration in schools is to break down social barriers in childhood and the period of adolescence, and ultimately bring about the intermarriage of the races … To prevent this, the white people of the South are willing to make every sacrifice.”
In the same year, James J. Kilpatrick, editor of the Richmond News Leader, who became a well-known national syndicated columnist and who provided the intellectual ammunition to the South’s resistance to Brown, remarked that “To integrate the schools of the Southern states … is to risk … a widespread racial amalgamation and a debasement of the society as a whole. This the Southern States are determined to resist. They will resist for a long, long time.”
Notwithstanding the above comments, not all white southerners took an obstinate and intransigence stance toward Brown. For example, in April 1956 North Carolina Senator Sam Ervin, a graduate of Harvard Law School, wrote an article for Look magazine, one of the best-selling magazines of the day. In that article, Ervin stated that he believed in racial segregation as it exists in the South. He condemned those who sought to immediately integrate race mixing in public schools. However, he also said, “While the Supreme Court decision is deplorable from the standpoint of constitutional law and ought to be reversed for that reason, it is not as drastic as many people think.”
Comment
The Supreme Court’s Brown II opinion received mild reviews, some supporting the decision and others being unsupportive. With few exceptions, the significantly negative view of the decision occurred only several years of scant progress, at best, toward desegregation. Also, negative critiques began as many in the South began to show hostile intransigence toward the opinion.
Nonetheless, it is instructive to note several things. One, the immediate impact of a decision is often not known and even if it is known it may not be the opinion that holds up over time. To some extent, we are all prisoners of the world as we know it. Some of those who supported the opinion became after a while intensely critical of the decision. For example, by the late ’70s Thurgood Marshall, then on the Supreme Court began asserting that he was immediately disappointed in the Brown II decision. Yet, in a phone conversation with a friend following the decision, Marshall said, “I think it’s a damned good decision.” At that time he thought any dissatisfaction with Brown II was permitting the perfect to be an enemy of the good.
Two, the Court in 1955-1956 was uncertain, at best, of whether President Eisenhower would support a decision for immediate and widespread school desegregation. For example, Chief Justice Warren had some reason to believe that Eisenhower may have supported Jim Crow. Warren was invited in the spring of 1954 to a small dinner at the White House. At the dinner, he was seated next to John Davis, who represented the South Carolina school district at oral argument in the Court. Eisenhower knew that the Court had Brown under review yet not only seated Davis next to Warren but also praised Davis to Warren. Eisenhower told Warren, “These are not bad people. All they are concerned about is to see that their sweet little girls are not required to sit in school alongside some big black bucks.”
In reviewing contemporary evidence, Justin Driver concluded that the crux of white opposition to school desegregation was the crippling fear that integrated classrooms would lead to integrated bedrooms. Such a belief, Justin thought, was soon forgotten in later discussions about the Southern opposition to school desegregation. The Court, he believes, would have been aware of this attitude. Having such awareness would make the Court hesitant to require immediate school desegregation.
Finally, the Court’s Brown decision occurred when support for school desegregation among the public seemed to be growing. In the early 1940s, the National Opinion Research Center began asking a question in its general social survey. NORC’s question was “Do you think white and Negro students should go to the same schools or separate schools?” In the early 1940s, only about 30% of the population answered, “same schools.” By the time the Court began to hear the Brown cases, that percentage had gradually increased to about 45%. That is still less than half the population, but one can argue that the Court’s Brown decision occurred at a time increased public support for integrated schools (by 1960 about 55% answered, “same schools”). Although less than half the population supported integrated schools, one can argue that at least the Court’s decision was not moving in the opposite direction of public opinion.
I will end with two comments regarding current events. Many people took one position immediately after the Brown II decision but then and took a very different opinion years later. This switch in positions even included Thurgood Marshall and others who advocated overturning Plessy v. Ferguson. It seems to me that one should tread very lightly, if tread at all, in castigating opinions or positions held by others many years ago.
Second, The racial comments made in the 1950s, especially by elected leaders, seem little different than some of the rhetoric increasingly being practiced by today’s elected leaders. At times, it seems we may not have advanced very far in accepting diversity and the differences of others.
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