A Social Revolution?: Brown v. Board of Education I
After several racial barriers were dropped post-WWII, minority groups, particularly in the North, became increasingly politicized. Congress, however, expressed no concern about such politicization. Relative to the administration, Eisenhower in eight years would never offer a word of support for desegregation. Thus civil rights attorneys began arguing against the separate but equal doctrine. The Sweatt decision (see earlier post) prompted a focus on public schools. The Court eventually decided to hear five public school cases simultaneously. The NAACP was significantly involved in all five cases.
The five cases comprising Brown v. Board of Education
In the 1952 term of the Court, a decision on separate but not equal facilities, Briggs v. Elliott, was appealed to the Court. A three-judge federal district court found, 2-1, that Clarendon County South Carolina elementary schools were not separate but equal (per an earlier test set up for higher education). It ordered the school authorities to proceed at once to integrate the schools and report back on what action had been taken. The two judges, Parker and Timmerman essentially found Plessy v. Ferguson applicable to lower education. Judge Waring made a strong dissent in which he sharply attacked the racial prejudice behind segregated schools. The decision was appealed to the Supreme Court, which in a per curiam decision vacated the order so that the district court could review the progress report. The district court again ruled the school board only to make every effort to equalize facilities. The decision was again appealed to the Supreme Court.
In Brown v. Board of Education, a Negro father tried to enroll his daughter in a close-by elementary school. The principal told the father that the school was for whites only under a state statute that authorized but did not mandate segregation. The three-judge federal district court found there was no material difference in the physical facilities and that the teachers were equally qualified. The district court thus rejected the request for an injunction against enforcement of the statute. However, the district court did find that segregation in and of itself created a sense of inferiority in Negro children that affected their motivation to learn, thus inhibiting their educational development. The case was appealed to the Court. This time, neither the state nor the school board indicated it would appear for oral argument. The Court requested that the state present its views at oral argument or concede the invalidity of the statute.
After the Briggs and Brown cases were docketed, the Court was requested to hear the Davis case from Prince Edward County Virginia, where the state constitution required school segregation. A federal district court in March 1952 rejected the Negro plaintiffs’ argument that segregation was in itself invalid but did find the Negro school facilities inferior. It ordered that a new high school for Negroes be constructed with all possible speed, being ready for September 1953.
After the Court decided to hear all three cases, it brought in a fourth case, Bolling v. Sharpe. The Bolling case involved segregated schools in Washington, DC and was a case pending in the Court of Appeals. Some observers of the Court thought this case added to the Court’s difficulties since the 14th Amendment did Some not apply to DC. It was a 5th Amendment case. On the other hand, some thought adding the Bolling case signaled that the Court was primarily concerned with school segregation as a social issue and not just a legal issue.
The final case was Gebhart v. Belton from Delaware. This case was different because it was an appeal by state authorities from a decision that favored the Negro plaintiffs. The Delaware Supreme Court upheld a lower court finding that educational facilities for Negro children were inferior to those for white children.
Initial oral arguments
Brown was the first case to be heard. The attorney for the appellants argued first and foremost that the 14th Amendment outlawed any classification based solely on race and, secondly, that a segregated school system denied the equal opportunity guaranteed by the 14th Amendment. The attorney also brought in the position of expert testimony regarding the adverse impact of segregation on the personality and mental attitudes of Negro children. The attorney for Kansas stressed a decision against school desegregation would necessarily overrule Plessy v. Ferguson. Such a decision would result in determining that the 21 states with either compulsory or permissive segregation plus Congress had been wrong for 75 years.
In the Briggs case, Thurgood Marshall, later to be named to the Court by President Johnson, argued for the appellants on the grounds of denying Negro students of equal protection of the laws. The attorney for South Carolina argued that the appellant’s construction of the 14th Amendment would preclude a state from segregating students on the basis of sex, age, or mental capacity. He also attacked the social science arguments being made on behalf of the Negro students.
The attorney for the appellants in the Davis case argued that the district court’s findings of inequality gave them an immediate right to the white school since their right to equal facilities is personal and present. A permanent remedy could only be established if segregation is abolished. The attorney for Virginia argued that the state’s segregated school system was based on a way of life, not on prejudice. The state also argued that the state had come to feel a moral obligation for equal facilities and had started a large program to accomplish that goal. A decision by the Court, the attorney argued, would make it impossible to raise tax funds and would thereby stop this progress.
In the DC case, the plaintiffs’ attorneys made the point that there was no authority for segregated schools in DC because Congress neither required or authorized segregation. The attorney for the District argued that Congress set up a separate school system to assist the colored population and not to provide them a sense of inferiority.
The attorney for Delaware stressed that the state had plans for school improvement that would make facilities equal. The Negroes attorney made the point that racism was the only basis for the state’s segregation laws and noted that Delaware had never ratified the 14th Amendment, stating that the amendment “would not be an attempt to establish an equality not sanctioned by the laws of nature or of God.”
Court Discussion
The justices focused their questions and statements on (1) the meaning of Court cases and lower court rulings, (2) constitutional issues, (3) the interpretation of statutes, (4) factual matters, and (5) problems of implementation.
Some of the justices showed concern about the Court’s past decisions. A key aspect was whether changing social and economic circumstances led to a different meaning for separate but equal than what the Court earlier used. Some justices questioned the usefulness of lower court expert testimony on the impact on Negro children of segregated education, saying they did not think much of the social science materials. The meaning of the 14th Amendment clearly troubled some justices. Some justices inquired about the force of precedents and adding a meaning to the Constitution. Some justices expressed concern about what kind of policy would be desirable for the country.
The implementation issue probably drew the most concern from the justices. In this regard, Thurgood Marshall did not ask for affirmative relief but only the removal of segregation. He thought school boards should work out solutions to end of segregation. Another NAACP attorney, Jack Greenberg, took a much stronger stand, saying that if the Court found that a constitutional right was being denied the Court could not consider the time it will take to correct it.
Perhaps almost equal in concern was the effects of reversing lower courts’ rulings. Were there effects other than those immediately involved?
A call for reargument
After the initial round of internal discussion, it appeared that four justices were in favor of overruling segregation and five justices in favor of affirming or leaning to affirming segregation, with Chief Justice Vinson being one of the five. Further discussion seemed to result in six votes to outlaw segregation and three to affirm, with Vinson being one of the three. In June 1953, at the end of its term, the Court announced it would need more time before finally disposing of the case. Some observers speculated that the Court wanted more time because the Court was deadlocked. Others thought the Court delayed its decision to give the South more time to integrate public schools.
When reargument took place at the start of the new term, December 1953, the Court had a new Chief Justice, Earl Warren. Warren was appointed by Eisenhower, a president who seemed uninterested in civil rights. Also, in this second round of reargument, the federal government was present to argue its position despite the Court’s refusal earlier to permit the Attorney General to participate in the first round of argument.
The second round of argument focused primarily on the Briggs and Davis cases. The NAACP attorneys argued that the framers and ratifiers of the 14th Amendment intended the amendment to end segregation in public schools and provide complete legal equality of the races. And taking a much more direct position than in the first round, Thurgood Marshall said the Court had the judicial power to abolish public school segregation.
The government’s position in its written briefs was somewhat hesitant. Solicitor General Ranking argued that the history of the 14th Amendment supported neither side’s position. He took the position that Congress rather than the Court should act on whether states should be permitted to legislate segregation in public education. At argument, however, Rankin went further that his brief when he answered a question by saying, “It is the position of the Department of Justice that segregation in the public schools cannot be maintained under the 14th Amendment.”
Implementation took up a much larger portion of the discussion in this second round. Marshall said that allowing a time longer than a year to deal with administrative matters would get the lower courts into the legislative field. He also commented that the duty and responsibility of the federal courts ends with telling the states what they cannot do. Solicitor General Rankin took a position different than that of the NAACP. He argued for a gradual adjustment with the development of local solutions rather than having one national timetable.
Clearly, the justices were bothered by the implementation problem. They realized, for example, that ending segregation might require states to spend money, but the Court could not raise taxes. The key issue, however, was whether implementation should be decentralized.
The justices discussed the cases in December 1953, but, contrary to its custom, did not immediately take a vote. Warren said years later that the delay helped contribute to a unanimous vote. Apparently, at the end of the reargument, the vote seemed to be either 6 to 3 or 7 to 2 in favor of overruling separate but equal. The new chief justice was strongly in favor of overturning separate but equal and of having the constitutional question answered even if past cases had to be overruled. He stated that “the only basis for segregation and separate but equal rights was the inherent inferiority of the colored race.” Justice Reed, of Texas, said that the Constitution of Plessy may not be the Constitution of today, but that he would vote in favor of segregation as an exercise of state’s police power. Justice Jackson thought the segregation cases required a political decision but that he did not know how to abolish segregation on judicial grounds. Justice Frankfurter thought the Court should appoint a special master to deal with the details of the cases.
A unanimous decision
On May 7, 1954, Chief Justice Warren, who decided to write the opinion, suggested the Court’s opinion should be “short, non-rhetorical, unemotional and above all, non-accusatory.” It appears that few if any changes were made in the opinion in the ten days between his suggestion memo and the Court’s May 17 announcement of its opinion.
Some key phrases of Warren’s opinion included the statement that education was now “perhaps the most important function of state and local governments.” He then declared education to be “…a right which must be made available to all on equal terms.” Warren also noted that “Whatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson, this finding [that racial segregation in the schools deprived minority children and would generate within them a feeling of inferiority as to their status in the community that might never be undone] is amply supported by modern authority. He cited references to the social science findings in a footnote, the notorious footnote number 11. Warren’s overall central thematic statement was this: “…in the field of public education the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal.”
Response to the opinion
The opinion quickly generated different kinds of responses. It clearly was a momentous decision either because of its substance or because of its unanimity.
Many saw the Brown decision as symbolically significant because it legitimized the protest by Negroes of their denial of equal opportunity and produced a permanent change in their status.
Major newspapers outside the South generally celebrated the opinion. The initial reaction in the South overall was restrained, for the most part adopting a wait and see attitude. The exception to the South’s reticence about the opinion fell to the Jackson, Mississippi Daily News. The Daily News criticized the opinion by stating, “White and Negro children in the same schools will lead to miscegenation. Miscegenation leads to mixed marriages and mixed marriages lead to the mongrelization of the human race.”
The criticisms, mostly generated over a longer time period, of the Brown opinion settled into four categories:
- The opinion lacked clarity regarding what was actually prohibited. For example, did the opinion apply solely to education? Did it require states to take affirmative acts to guarantee school integration? Did it apply only to de jure segregation or did it also apply to de facto segregation, that is, segregation not mandated by law?
- Legal and historical continuity was not adequately addressed. The opinion did not well address precedent or clearly stated legal principle.
- The opinion to some seemed more like judicial legislation.
- The Court misused nonlegal material, especially social science findings as referenced in footnote number 11.
- The Court failed to deal with implementation.
A little realized aspect of the opinion at the time was its focus on the students. The constitutional deprivation issue belonged to the students themselves more than to their parents.
Comment
Clearly, the reactions to Brown were volatile and substantial. But such reactions did not occur until later. Subsequent posts in this series (a social revolution) will address the consequences of the Brown decision after the Court’s handling of the implementation issue, or what is called Brown II.
Some observers of the Brown decision pointed out that opponents of integration may have been better satisfied with a 7-2 decision. This would have given opponents a better sense of being heard and listened to. While I don’t agree with this perspective, I can see how some may find it attractive. Knowing the decision was going to be extraordinarily controversial, Chief Justice Warren worked hard to generate a unanimous decision. I am not a close observer of the Supreme Court, but I wonder the extent to which in recent times justices try earnestly to develop a common position, or at least a significantly majoritarian position, on controversial and highly significant issues. My sense is that the Court recently has become increasingly swept up in the strong current of political polarization, to the point of not trying to swim against that stream.
To me, an interesting aspect of this post is its timing. The first post in this series was published prior to the first Democratic presidential debate. This post was developed largely after the debate. The primary issue of contention in the debate was school integration/segregation/busing. Also, in terms of current activity, is Joe Biden’s reference to working with segregationists. He mentioned specifically Mississippi Senator James Eastland and Georgia Senator Talmadge. Both senators will make an appearance in later posts.
Everyone is probably aware of the significance of the Brown decision. But I was never knowledgeable about the details of the decision and much of its aftermath. Developing these posts has been a learning experience. They provide a clearer and thicker thread from the 1950s through to today regarding cultural and political divisions. People and generations have changed, but some significant and controversial memes from the past persist.
Finally, I am again struck by the importance of the NAACP’s role in the Brown decisions as well as the pressures put on elementary minority students and lower court judges. For example, although the little girl in the Brown case was not in the principal’s office when he told her father that she could not enroll in the school, she must have been aware that his request would be fruitless. In the Briggs case, Judge Waring faced a great deal of community rancor, and eventually left both the bench and the state.
Leave a Reply