Brown at 50 | The Nation


Brown at 50

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Prior to the landmark Supreme Court rulings in Brown v. Board of Education and Bolling v. Sharpe, the US government and the states were permitted to segregate students racially in primary and secondary public schools. The official rationale for this arrangement was that students--black as well as white--would all fare better in their own, racially distinct schools. Schooling would be separate...but equal, and thus fair. The "separate but equal" formula was coined in Massachusetts in 1850 but elevated to national influence in 1896 when, in Plessy v. Ferguson, the Supreme Court affirmed the constitutionality of a Louisiana statute that required racial segregation on trains.

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Eric Foner
Eric Foner, a member of The Nation’s editorial board, is the DeWitt Clinton Professor of History at Columbia...
Randall Kennedy
Randall Kennedy, a member of The Nation's editorial board, teaches law at Harvard. His most recent book is Interracial...

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On November 7, voters in Alabama erased from that state's Constitution a provision dating from 1901 that declared that "the legislature shall never pass any law to authorize or legalize any marriage between any white person and a Negro, or descendant of a Negro." This declaration represented in part a desire by white supremacists to express as fully as possible their intention to expunge the racially egalitarian symbols, hopes and reforms of Reconstruction. Although Alabama had never enacted a law expressly authorizing interracial marriage, in 1872 the state's Supreme Court did invalidate the law that prohibited such unions. But it promptly reversed itself in 1877 when white supremacists regained power. The Alabama Constitution's disapproval of interracial marriage, however, had still deeper roots. It stemmed from the presumption that white men had the authority to dictate whom, in racial terms, a person could and could not marry. It was also rooted in the belief that certain segments of the population were simply too degraded to be eligible as partners in marriage with whites. At one point or another, forty states prohibited marriage across racial lines. In all of them blacks were stigmatized as matrimonial untouchables. In several, "Mongolians" (people of Japanese or Chinese ancestry), "Malays" (Filipinos) and Native Americans were also placed beyond the pale of acceptability.

Rationales for barring interracial marriage are useful to consider, especially since some of them echo so resonantly justifications voiced today by defenders of prohibitions against same-sex marriage. One rationale for barring interracial marriages was that the progeny of such matches would be incapable of procreating. Another was that God did not intend for the races to mix. Another was that colored people, especially blacks, are irredeemably inferior to whites and pose a terrible risk of contamination. The Negrophobic Thomas Dixon spoke for many white supremacists when he warned in his novel The Leopard's Spots that "this Republic can have no future if racial lines are broken and its proud citizenry sinks to the level of a mongrel breed." A single drop of Negro blood, he maintained apocalyptically, "kinks the hair, flattens the nose, then the lip, puts out the light of intellect, and lights the fires of brutal passions."

Although opponents of prohibitions on interracial marriage have waged struggles in many forums (e.g., academia, the churches, journalism), two in particular have been decisive. One is the courtroom. In 1967 in the most aptly titled case in American history--Loving v. The Commonwealth of Virginia--the United States Supreme Court ruled that prohibitions against interracial marriage violated the equal protection and due process clauses of the Fourteenth Amendment. (Although much credit is lavished on the Court's decision, it bears noting that nineteen years earlier, in 1948, the Supreme Court of California had reached the same conclusion in an extraordinary, albeit neglected, opinion by Justice Roger Traynor.) When the federal Supreme Court struck down Jim Crow laws at the marriage altar, it relied on the massive change in public attitudes reflected and nourished by Brown v. Board of Education (1954), Martin Luther King Jr.'s "I Have A Dream" address (1963), the Civil Rights Act (1964) and the Voting Rights Act (1965). The Court also relied on the fact that by 1967, only sixteen states, in one region of the country, continued to retain laws prohibiting interracial marriage. This highlights the importance of the second major forum in which opponents of racial bars pressed their struggle: state legislatures. Between World War II and the Civil Rights Revolution, scores of state legislatures repealed bans against interracial marriage, thereby laying the moral, social and political groundwork for the Loving decision. Rarely will any court truly be a pioneer. Much more typically judges act in support of a development that is already well under way.

Unlike opponents of Brown v. Board of Education, antagonists of Loving were unable to mount anything like "massive resistance." They neither rioted, nor promulgated Congressional manifestoes condemning the Court, nor closed down marriage bureaus to prevent the desegregation of matrimony. There was, however, some opposition. In 1970, for example, a judge near Fort McClellan, Alabama, denied on racial grounds a marriage license to a white soldier and his black fiancée. This prompted a lawsuit initiated by the US Justice Department that led to the invalidation of Alabama's statute prohibiting interracial marriage. Yet the Alabama constitutional provision prohibiting the enactment of any law expressly authorizing black-white interracial marriage remained intact until the recent referendum.

That an expression of official opposition to interracial marriage remained a part of the Alabama Constitution for so long reflects the fear and loathing of black-white intimacy that remains a potent force in American culture. Sobering, too, was the closeness of the vote; 40 percent of the Alabama electorate voted against removing the obnoxious prohibition. Still, given the rootedness of segregation at the marriage altar, the ultimate outcome of the referendum should be applauded. The complete erasure of state-sponsored stigmatization of interracial marriage is an important achievement in our struggle for racial justice and harmony.

Dissenting in Plessy, Justice John Marshall Harlan stated forthrightly what everyone actually knew: that racial segregation arose not from any mutual, reciprocal, respectful desire for social distance and group autonomy but rather as an expression of white supremacist subordination of people of color. Noting that segregation proceeds "on the ground that colored citizens are so inferior and degraded" that they cannot be allowed to share public space with whites, Harlan predicted that segregation would "stimulate aggressions...upon the admitted rights of colored citizens," "arouse race hate" and "perpetuate a feeling of distrust between [the] races."

The half-century after Plessy confirmed Harlan's dire prophecies. White supremacists bent on undoing the gains achieved during the Reconstruction Era disenfranchised blacks, severely limited their economic and educational opportunities, terrorized them through mob violence and systematically stigmatized them by extending segregationist laws and customs to practically every sphere of social life, from hospitals to prisons, beaches, restaurants, bathrooms and schools. In some courtrooms, witnesses of different races were required to take oaths on separate Bibles.

On May 17, 1954, the Supreme Court in Brown invalidated state laws requiring or permitting racial segregation in public primary and secondary schools. Such laws, the Court concluded, violate the equal protection clause of the Fourteenth Amendment. Simultaneously, in Bolling the Court held that the due process clause of the Fifth Amendment prohibited the federal government from racially segregating students in the District of Columbia. "In the field of public education," the Court declared, "the doctrine of 'separate but equal' has no place."

These decisions marked a major step forward in the struggle for racial justice--one that surely warrants commemorating on its fiftieth anniversary. The rulings reflected and encouraged developments that would soon spark that burst of humane, bold and heroic action we now know as the civil rights movement. Brown and Bolling stemmed from an extraordinary campaign of social reform litigation mainly led by black attorneys who had themselves suffered cruel deprivations imposed by segregation. These decisions demonstrated that at least some sectors of the white establishment were willing to begin cautiously to challenge open, unembarrassed, official discriminations against blacks and other peoples of color.

Although Brown and Bolling are often lauded as "eloquent" opinions, they were in fact remarkably modest in their rhetoric, their scope and their remedial approach. Seeking to create a unanimous decision in the face of ambivalence and resistance from some of his colleagues, Chief Justice Earl Warren intentionally penned opaque and non-accusatory opinions keenly attentive to the sensibilities of segregationists. As a result, the language of the opinions had "all of the moral grandeur of a bill of lading," as the historian Richard Hofstadter once said of another enormously consequential declaration, the Emancipation Proclamation. One looks in vain in Brown and Bolling for the candid and vivid articulation of segregation's purpose that one finds in Justice Harlan's dissent in Plessy. One looks in vain for a reckoning with segregation which explains that it was what Professor Charles Black termed a "child eating lie," one of many ways in which white supremacists armed with state power kept blacks in "their place." The sobering fact is that in 1954 the Supreme Court of the United States could not yet tell the truth about segregation.

Although Brown and Bolling are often celebrated as if they invalidated official segregation broadly, the opinions only expressly struck down de jure segregation in schooling. Only after a long, difficult campaign by civil rights activists did the Court extend its antisegregationist logic to other areas. For example, despite attempts soon after Brown to prod the Court to invalidate segregation at the marriage altar, it was not until 1967 that the Justices got around to striking down remaining state laws prohibiting matrimony across the race line.

Usually courts grant a remedy to prevailing petitioners. In Brown and Bolling, however, the Court rejected the plaintiffs' demands to be permitted immediately to attend schools on a nonracial basis. Instead, after yet another hearing on the matter, the Court deferred to "moderate" segregationists by making clear that it would refrain from insisting upon a quick transition to nonracial schooling. It would suffice, the Court declared, for desegregation to proceed "with all deliberate speed." A full decade after Brown and Bolling, a little more than 1 percent of black children in the former Confederate states attended schools that were at all desegregated.

The Supreme Court decisions of May 1954 did not mark the end of purposeful, state-mandated racial segregation in public schooling; they marked only the beginning of a new phase of struggle. The reformist Justices of the Supreme Court played an important role in that struggle. But it would be wrong to permit their handiwork to eclipse the achievements of activists such as Medgar Evers, Modjeska Simkins, Fannie Lou Hamer, Myles Horton, James Reeb, Robert Moses, Septima Clark, Ella Baker, James Farmer, Thurgood Marshall, Roy Wilkins and John Lewis--people who, assisted by Brown and subsequent rulings, attempted with considerable success to uproot segregation and its kindred abominations. Brown's symbolic stature today would be much diminished were it not for the accomplishments of the civil rights movement--its leveling of racial barriers beyond the reach of litigation, its elevated image of the black American and its impressive legislative legacy, particularly the Civil Rights Act of 1964 and the Voting Rights Act of 1965.

We invited a wide range of commentators to participate in this special issue of The Nation, and they offer varying, sometimes conflicting assessments of Brown, its companion cases and its legacy. Judge Robert L. Carter revisits his ideas and motivations as one of the lead attorneys who argued the cases at trial and on appeal. Michael J. Klarman reconsiders the social milieu that surrounded the 1954 Supreme Court and evaluates Brown's place in civil rights history. Jack Bass shows how a remarkable cadre of progressive judges in the lower federal courts (most of them Republican appointees) were critical to enforcing Brown's mandate. Alan Richard returns to Clarendon County, South Carolina, to probe lingering tensions in a rural locale where school desegregation plaintiffs fifty years ago were brutally repressed. Michael Honey illuminates the ways in which desegregation struggles have intersected with efforts to advance the interests of urban black workers. Peter Schrag and Claude M. Steele each offer concrete strategies for improving the lot of disadvantaged minority students today. And the diverse participants in the forum that follows weigh the impact of Brown on an American society still afflicted by profound racial inequalities.

A recurrent message in this issue is that Brown v. Board of Education and its companion cases contributed in a major way to bettering America by delegitimizing racial segregation in public schooling. A second key theme, however, is that Brown's promise remains, to a considerable extent, unfulfilled. Jim Crow schooling is not a wrong inflicted in ancient times on people long since dead; it is an all too recent injustice that created unhealed wounds. A century ago, W.E.B. Du Bois wrote the famous words, "The problem of the twentieth century is the problem of the color line." Despite all that has changed since Brown, his words remain a challenge for the twenty-first.

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