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. S. 321, 329-330.




  TRANSCRIBER’S NOTE

  There is no section heading ‘VIII’ in Part I of the original text.
  Section VII is followed by section IX.

  There is no section heading ‘V’ in Part II of the original text.
  Section IV is followed by section VI.

  Obvious typographical errors and punctuation errors have been
  corrected after careful comparison with other occurrences within
  the text and consultation of external sources.

  Except for those changes noted below, all misspellings in the text,
  and inconsistent or archaic usage, have been retained.

  Pg 67: ‘a white policemen’ replaced by ‘a white policeman’.
  Pg 219: ‘is a stonehouse’ replaced by ‘is a storehouse’.