The Supreme Court says separate but equal is inherently unequal.
The Supreme Court’s decision outlawing segregation in American public education was unanimous. If anything, world opinion was even more emphatic. Even the Communist powers, we suspect, must privately have applauded the decision. In Kenya a spokesman for the Luo tribe voiced the growing world-wide sentiment against all forms of racial discrimination when he said “America is right . . . If we are not educated together, we will live in fear of one another. If we are to stay together forever, why should we have separate schools?” Quite apart from this sentiment, the decision was especially welcome at this time since it enabled us and our friends abroad for the first time in some years to be equally and simultaneously enthusiastic about an important announcement from Washington. The decision was a fine antidote to the blight of McCarthyism and kindred fevers.
The dead no less than the living must have rejoiced. Among the ghosts that smiled with pleasure–it is somehow easier to imagine them smiling than cheering–were Homer Adolph Plessy, the one-eighth-Negro plaintiff in Plessy v. Ferguson, in which the iniquitous “separate but equal” doctrine was first announced, and his counsel, Albion Winegar Tourgée–who is better known, perhaps, for his novels about the Reconstruction period. Another beaming ghost would be Justice John Marshall Harlan whose great dissents in this and the Civil Rights Cases have at long last been fully vindicated.
Not every ghost smiled, we may be sure. Glum and dour must have been the ghost of the late Senator Theodore G. Bilbo, but in this case, happily, there was compensation. For only a week or so before the Supreme Court’s decision a life-size bronze statue of the Senator was unveiled in the Mississippi Capitol. “His imperfections were infinitesimal,” said Mississippi’s Secretary of State in unveiling the statue, “when compared to the magnitude of his contribution to mankind.”
“If one race is inferior to the other socially,” the majority had said in the Plessy case, “the Constitution of the United States cannot put them on the same plane.” On this assumption the “separate but equal” doctrine was based, and on this doctrine in turn was erected the whole structure of legalized or institutionalized Jim Crow discrimination that came into being in the late 1890’s. With profound insight Justice Harlan, alone among his colleagues, recognized the fallacy and foresaw clearly the long chain of evil consequences. The effect of the decision, as he pointed out, was “to permit the seeds of race hate to be planted under the sanction of law.” When his colleagues argued that any “commingling” of the races meant bloodshed and violence, he replied, “If evils will result from the commingling of the two races upon public highways established for the benefit of all, they will be infinitely less than those that will surely come from state legislation regulating the enjoyment of civil rights upon the basis of race.” To this prophetic warning he subjoined the memorable rescript: “The sure guaranty of the peace and security of each race is the clear, distinct, unconditional recognition by our governments, national and state, of every right that inheres in civic freedom, and of the equality before the law of all citizens of the United States without regard to race.” The Constitution, he reminded his colleagues and us, “is color-blind, and neither knows nor tolerates classes among citizens.”
What the Supreme Court has now done, of course, is to substitute Justice Harlan’s great dissent for the majority opinion as the law of the land. In the sixty-odd years that have intervened, the Supreme Court, in Mr. Dooley’s famous phrase, followed the election returns in clinging tenaciously to the precedent of Plessy v. Ferguson. That the court still follows the election returns is further illustrated by its most recent decision; what is not so apparent is that the court also follows, as most courts must do sooner or later, the census returns. Underlying the decision to overrule the “separate but equal” doctrine is a recognition of the legal and constitutional meaning of the following social facts: the gradual redistribution of the Negro minority both rationally and within the Southern states; the growth of educational facilities nationally and regionally; the number of white-faced Herefords now grazing on Southern acres once devoted to cotton; the remarkable shift of cotton production to the Southwest and California and its rapid mechanization; the industrialization and urbanization of the South; the increased mobility of population that has come with a revolution in transportation, the stabilization of agricultural prices, including those of cotton; the speed of rural electrification and soil conservatism, and the impact of the T.V.A.–in short, the facts to which The Nation called attention in its special issue on The Southern Negro published in September, 1952. Social facts can be blinked for a time, but they are more difficult to ignore than fallacious social theories and more persuasive, with courts at any rate, than moral sentiments.
Jubilation over the belated legal demise of Jim Crow in the public schools should not be permitted to obscure the fact that an enormous expenditure of energy and funds will be required to implement the court’s decision. The timely recommendation of the Executive Council of the American Federation of Labor that Congress set up a billion-dollar fund to help the South build new schools is an indication that the struggle for equal educational facilities has now shifted from the courts to the legislature. Then, too, means must be found to relieve the enormous social and economic pressures that hem Negroes in residential ghettoes before a significant degree of integration can take place in the schools, North or South. The magnitude of this problem was illustrated in Robert Greenberg’s piece in last week’s Nation on the Trumbell Park housing disturbance in Chicago.
Nor should the loud ringing of bells drown out the reminder that the Constitution is creed-and-idea blind as well as color-blind. Justice Harlan’s conception of “civic freedom” is just as relevant to other types of discrimination as to those based on racial or religious differences. Today no less than in 1896, to paraphrase his dictum, the sure guaranty of national peace and security is the clear, distinct, unconditional recognition by our governments, national and state, of every right that inheres in civic freedom without regard to race, religion, sex, national origin, or political belief. A constitutional democracy an safely tolerate the expression of authoritarian beliefs; what it cannot tolerate is suppression of the rights of any minority, including political dissenters. The Constitution does not say anything about “clear and present” any more than it says anything about “separate but equal.” As defined in the Dennis case, “clear and present” has become, not a test to safeguard freedom of speech as Holmes and Brandeis intended, but a severe limitation on that right.
Nor should we delude ourselves with the pleasant assumption that with one Supreme Court decision the United States can overcome a fairly widespread reputation for racial arrogance. Rather, the reception which has been accorded the court’s decision should be taken as a guide to policy. For it demonstrates once again the measure of unity and confidence and pride that can be aroused whenever unqualified expression is given to the individual and social values to be found in the Constitution and the Bill of Rights. Fortunately we continue to redeem, often after costly delays and protestations, the promises to which we are committed by history and tradition and, we can now add, by current conviction. Alexander Meiklejohn has observed that “there has come over us, in recent years, a vivid sense of having been disloyal to our own purposes. In many ways we are obsessed by the fear of having betrayed ourselves.” The way to exorcise this fear, which has enfeebled and humiliated the nation, is to give expression to the values we say we respect. This the Supreme Court has done, and in doing so has won nearly universal admiration.
On the meaning, impact, and likely consequences of the Supreme Court’s decision, we have invited the statements that follow. Readers may find it interesting, also, to turn back to Ronald Crick’s piece in our issue of October 31, 1933: The South’s Eve of Decision.
BY LOUIS I. REDDING
ENGRAVED on the high, white entablature of the Supreme Court are the words “Equal Justice Under Law.” A picture printed on the front pages of many newspapers last week showed lawyers standing on the marble steps of the courthouse beneath those words, smiling in restrained jubilation. They had just heard the Chief Justice read two decisions, backed by the authority of a solidly united court, invalidating the public-school segregation which their parents had challenged.
Their rejoicing, so long deferred, does not obscure the travail which will ensue before the court’s rejection of separate, inferior status for Negro children is reflected in all the schoolrooms of the nation. For the court’s pronouncement is not self-executing. The decisions judiciously provide a delay until fall, when the four litigant states, Kansas, South Carolina, Virginia, and Delaware, along with the District of Columbia, are requested to present plans and procedures upon which implementation of the court’s ruling may be based. Other states which require or permit segregation in public education are invited by the court to appear at reargument as amici curiae. This invitation is of broad significance inasmuch as but three of the seventeen states which require segregation and only one of four states which permit it are parties before the court. Such states as accept the court’s invitation to come in as amici curiae would stand in poor grace before the bench should they disregard the decisional law they helped implement and at some subsequent date must therefore return as litigants. In part this may explain Governor Talmadge’s pungent remark that Georgia will not grasp the knife “that they use to cut off our heads,” and the efforts of the Attorney General to rally the Southern states to boycott the re-argument. Participation in implementation of the ruling would connote at the least pro forma indorsement.
The uncomplicated directness with which the two opinions are addressed to the central issue of the power of government to use race as a basis for classification in public education leaves no room for misunderstanding or quibble. Crafty evasive devices would be as offensive to such clear judicial will as clamorous defiance, and hardly less discernible. Gerrymandering, pacts with a few guileless or prideless Negroes in a design to bind their non-consenting brothers to continue educating their children as pariahs; conveyance of public property to private persons to operate a separate white or Negro school, with or without state subsidy; calling out the police or deputized posses to enforce segregation–all are patently repugnant.
The economic disabilities of the South affect all the public services it affords and would not expose any protracted continuance of separate educational facilities now declared “inherently unequal.” As the Delaware Chancellor, the only lower court to order the immediate admittance of Negro children to schools which a state constitution ordered exclusively for whites, courageously ruled, “to postpone relief is to deny relief” for the present Negro school population. Relief, as the highest court now declares, means de-segregation.
Obviously, reasonable time for explainable administrative adjustments, undertaken in good faith must be allowed. Transition, however, need not take years. The concerted wisdom of the court and the states affected can devise decrees which will suitably and promptly effectuate the law without exacerbating enforcement litigation.
Very probably the Southern states, by and large, will react as maturely functioning and worthy constituents of the national union. Enormous encouragement is given this belief by avowals of acceptance of the court’s opinion from such leaders as Governor Shivers of Texas and Senator Long of Louisiana. Rotary Club members at their luncheon in Savannah rose to applaud the announcement of this decision. Their demonstration, along with other such “straws in the wind,” makes it very doubtful that the Talmadge nullification program can succeed in thwarting the national law.
The court’s decision justifies faith in our country in bitter, restive times.
[Louis L. Redding, member of the N.A.A.C.P.’s Legal Committee, represented the plaintiffs in the Delaware case, one of those involved in the Supreme Court decision.]
BY HARRY S. ASHMORE
Little Rock, Arkansas
ALL told, the South’s reaction to the Supreme Court decision against segregation in education has been calm. Governor Herman Talmadge of Georgia responded with predictable violence. But he stood alone among Southern governors. The Jackson, Mississippi, Daily News spoke of blood-stained Southern soil and roared defiance of the court. But other major Southern newspapers generally counseled caution and accepted the new dispensation as something that must be lived with.
This is not to say that the white South likes the decision. It does not. But it is clear that for the most part Southerners may be expected to undertake calmly and rationally to work out the tremendous social adjustments that ultimate integration of the public schools will require.
There will be great variety in the form of Southern compliance. In communities where Negroes are heavily concentrated–it is worthy of note that less than 10 per cent of Southern counties now have a population more than 50 per cent Negro–legal segregation is strongly buttressed by tradition and custom. There the pattern may be expected to stand for many years, even though the sanction of law has been withdrawn. In communities where the concentration of Negroes is light–in some 40 per cent of Southern counties Negroes form less than 10 per cent of the population–the transition to integrated schools may very well begin immediately, for state segregation statutes have been invalidated by the Supreme Court.
The practical problem for most Southern communities is to hammer out an acceptable compromise somewhere between the polar positions of the Southern white who does not yet accept the Negro as his equal, and the Southern Negro, who is no longer willing to accept anything less. This is the reality of the situation, and it is so recognized by both white and Negro leaders. There is, I think, encouragement in this, for it is always easier to deal with a concrete problem than with a moral abstraction.
In Jonathan Daniels’s telling phrase, the white and Negro people of the South once again have urgent business together. I am confident they will be able to transact it with good heart and good will.
[Henry S. Ashmore, executive editor of the Arkansas Gazette, is the author of “The Negro and the Schools,” reviewed by Floyd Hunger on page 467 of this issue.]
BY OLIVER HILL
In my opinion the unanimity of the decision was the most marvelous thing that could have happened for the South. The fact that not a single justice dissented will unquestionably impress sober-minded citizens with the necessity of reappraising their racial views. Despite the bombastic outbursts of some of our reactionary politicians, the overwhelming majority of people in the South and particularly in Virginia are fair-minded and law-abiding.
The decision will of course cause a change in the habits of a large number of people. Irrespective of the racial issue, this will naturally create readjustment problems. The decision presents to those who believe in the rights of the individual as guaranteed by the Constitution the long-awaited instrument with which to effect the changes necessary in the customs and practices of the South, to bring it in line with the American democratic ideal. Now that public officials have been convinced that there is no longer any legal basis for resisting such changes, we have no doubt that all interested parties will work to make the necessary readjustment in an amicable fashion. It will not be long before the South’s white citizens realize that this decision will also enhance their personal liberties, just as the Emancipation Proclamation freed the poor white man by giving dignity to labor.
[Oliver Hill is a member of the legal committee of the N.A.A.C.P. and chairman of the organization’s Virginia State Conference.]
BY ARTHUR D. SHORES
THE court’s decision was not unexpected, despite the expressions of shock from politicians and some newspapers. It is my opinion that a majority of the people of Alabama and the South are ready for abolition of segregation not only in the public school system but in every walk of life. However, the immediate course of the state is in the hands of its politicians and will depend on the caliber of men at the helm. We do not believe that there will be open defiance of the court’s ruling, but we do expect legal maneuvers to sidestep it. Action will be necessary in Alabama to open the white schools to Negroes, but once open, we expect no serious incident.
[Arthur D. Shores is president of the Alabama Progressive Democratic Association.]