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Desegregation and the Law


reviewed by David Fellman - 1958

coverTitle: Desegregation and the Law
Author(s): Albert P Blaustein, Clarence Clyde Ferguson, Jr.
Publisher: John Wiley, New York
ISBN: , Pages: , Year:
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By any calculation May 17, 1954, when segregation in the public schools was declared unconstitutional by the Supreme Court, was a fateful day in the history of the United States. It was surpassingly important in many ways—for the Court, for education, for the course of American government and politics, for racial relations, and indeed for our international relations as well. It cannot be gainsaid that the decision in Brown V. Board of Education grew out of America's most serious social problem, the problem of extending to the Negro population—and one American in ten is a Negro—full democratic citizenship.


The storm kicked up by this decision has rarely been equaled in our history. Perhaps roughly comparable was the furore created by Chief Justice Taney's opinion in the Dred Scott case, which also dealt with the status of the American Negro. The Court's ruling against the constitutionality of the federal income tax in 1895 was the subject of prolonged and bitter debate, as were the decisions against the leading New Deal statutes of the first administration of President Roosevelt. But the race question cuts a wider and deeper swath across the whole face of American life and impinges upon almost every aspect of the nation's existence: political, social, economic, cultural, moral and religious.


Below the Mason-Dixon Line, May 17, 1954 is widely known as "Black Monday." The Brown decision has been denounced as bad law, bad morals, bad educational policy, and an inexcusable invasion of states' rights. On the other hand, the decision has been praised as a welcome step forward in the march to a better democracy for all, and as the inevitable climax of a long course of Court decisions leading in the direction of racial integration in public education. Whatever may be the equities in this debate, it is abundantly clear that the rawest nerves of human emotion have been touched.


The measure of the proportions of the uproar which has followed in the wake of the Court's decision is reflected in the tremendous body of literature which has already appeared on the subject. Indeed, it would be a full-time job to attempt to read everything that is coming out, and even specialized scholars must necessarily be selective in what they choose to read. From the point of view of selection alone, the three books under review constitute an admirable, broad-gauged introduction to the whole problem. Blaustein and Ferguson write about the legal aspects of the school segregation cases. Shoemaker's book considers the measures taken in the South to comply with or combat the Court's decision; and Miller analyzes its impact upon private education. Taken together the three books cover the whole waterfront pretty well. All are well written, none is very technical or too long, and they are obviously addressed to the general reader.


Blaustein and Ferguson are both lawyers. The former is presently director of the law library at the Rutgers Law School and has written extensively on legal subjects. The latter, a cum laude graduate of Harvard Law School, teaches law at Rutgers, and has held a number of positions in both the New York and the federal governments. Their book, Desegregation and the Law, describes with an absolute minimum of technical jargon how the five segregation cases came up, how they were argued by counsel, and how the Court arrived at its decision. While the Court reversed the "separate but equal" doctrine of the old Plessy case, the authors show that it hardly came as a bolt out of the blue, since the doctrine had undergone steady erosion through a long series of decisions made during the past twenty years or so. These decisions, as well as the rationale of the Chief Justice in the Brown case, and particularly the much-discussed use of sociological and psychological data, are carefully and clearly analyzed. If the book has any theme at all, it is that while the Court made new law in the segregation cases, it did not make it out of whole cloth. And the authors conclude that the Court's decision rests not upon any doctrine of reasonableness, but rather upon the solid proposition that racial segregation by law is per se unconstitutional. They also analyze in considerable detail the problem the Court faced in fashioning a decree, and describe briefly the impact of the Brown case as a precedent for later cases dealing with a wide variety of problems in addition to education, such as transportation, housing, parks and recreation facilities. The authors complete their book with a description of patterns of compliance and avoidance in the states most immediately affected by the abandonment of the "separate but equal" doctrine as a measure of the constitutional guaranty of the equal protection of the laws.


Desegregation and the Law is a fine legal study, learned without being heavy, carefully done and adequately documented, telling a very complicated story in understandable terms. Those who are not familiar with American constitutional law will find this a very informative and readable exposition of the segregation cases.


Professor Arthur S. Miller, who teaches law in the Lamar School of Law at Emory University, undertakes a much more modest analysis in his book, Racial Discrimination and Private Education. It is a study of the legal problems involved in the racial desegregation of denominational and other private schools. While the opening chapter briefly discusses the place of the private school system in America, the author is mainly concerned with the possbile impact of the Brown decision upon the private schools. He argues that governmental sanctions against integration in the private schools, whatever form such sanctions make take— such as withdrawal of aids, criminal prosecutions, denial of tax exemption, and the like— would be unconstitutional on equal protection grounds. But there are powerful private, nongovernmental sanctions against integration—physical violence, economic pressures, and such psychological weapons as social ostracism—and with these the law is not very effective. While he is aware of the public nature of private education, I think Professor Miller is quite right in concluding that under the prevailing interpretation of the Fourteenth Amendment, which applies the restrictions of the Equal Protection Clause only to state action, what a private school does uncoerced by positive state law does not fall within the scope of possible federal correction.


With All Deliberate Speed is a collection of eleven essays written by staff members of the Southern Education Reporting Service, of which Shoemaker is Executive Director, or by newsmen who have worked closely with the Service and its invaluable monthly newspaper, the Southern School News. The purpose of the essays is to describe what has happened along the school integration front in seventeen Southern and border states during the first three full years following the Brown decision. The opening essay deals with the legal aspects of desegregation, and there follow discussions of the battle for the control of the schools in the South, the record of violence, desegregation in the border states, in the cities and in the Deep South, the impact of the issue upon politics and the legislatures in the affected states, the experience in Washington, D. C., the segregation problem in the colleges, and the plight of school administrators in the troubled areas. These essays, which are altogether lively and uncluttered, bring together a large amount of factual data, but also venture to interpret the facts.


For one thing, these essays lay appropriate emphasis upon the critical importance of leadership attitudes. The mob violence in Southern communities, and the persistence of intransigent opposition among large segments of the population are most certainly encouraged by the defiance expressed by such exalted community leaders as members of Congress, governors and state legislators. Just as one of the principal reasons for juvenile delinquency is parental delinquency, so does the lawlessness of public officials trickle down. Thus, a young lawyer in Clinton, a small east Tennessee mill town, is quoted as saying: "What the hell do you expect these people to do when they have 90 some odd congressmen from the South signing a piece of paper [the Southern Manifesto] that says you're a Southern hero if you defy the Supreme Court?" On the other hand, a stern determination of the community leaders to enforce the law is almost invariably an ingredient of successful integration.


Wallace Westfeldt, of the Nashville Tennessean, explores the question whether there is a pattern of resistance to desegreagtion. He concludes that there is not, but he does venture some generalizations: that the intensity and power of resistance vary directly with the organization of segregationist sentiment in the community; that the number of Negro children involved in any particular place does not matter very much; that advance warning of desegregation may or may not have an effect; that so far at least the position of the clergy has been indecisive; that organized resistance seems to be a delaying tactic rather than a preventive one; that there has been no real bloodshed; and that there have been no crowd demonstrations by Negroes.


Similarly Robert Lasch, of the St. Louis Post-Dispatch, in seeking to explain the reasons for the relative ease with which most of the border states have complied with the Court decision, stresses the impact of official attitudes, the factor of extensive community preparation, the difference in community attitudes, the stern readiness of officials to enforce the law against mob violence, and the steady pressure exerted by the courts. It is worth noting that in these areas the opposition to integration has been coming not from the students but from their parents. Similarly, as Edgar L. Jones of the Baltimore Sun points out, desegregation has been more easily achieved in the cities than in rural areas, for various reasons: big-city people are not close to policy-making decisions, as rural people are likely to be; metropolitan officials have the full force of law and order on their side; white and Negro workers now enjoy equal status in a growing number of fields of employment; there are in the cities many groups working for the promotion of racial harmony or improvement in the status of Negroes; and residential segregation reduces the proportions of the problem of integration. On the other hand, so far as racial integration in the schools is concerned, W. D. Workman, Jr., makes it abundantly clear that the Deep South will be a very tough nut to crack. So far, at least, practically nothing has happened there by way of compliance with the Court decision, and a great deal has occurred to frustrate the movement toward integration. Indeed, he feels that one of the most tragic developments in the South has been the quiet exodus of the moderates from the debate on this question. The extremists have taken over.


Other contributors to this volume fill in the story of Southern resistance. Thus during the three years under observation, Southern legislatures adopted at least 136 new measures designed to delay or prevent desegregation of the schools. These include such devices as pupil placement laws (in at least eight states); the authorization of the abolition of the public schools (in six states); financial aid to students wishing to attend segregated, private schools if public schools are closed (in four states); discouragement of court attacks on segregation laws (in four states); resolutions of interposition or nullification (in all states); and miscellaneous statutes affecting compulsory attendance, teacher tenure, transportation, and use of funds for desegregated education. Pupil assignment seems to have emerged as the focal point of legislative resistance to the Court decision.


In short, With All Deliberate Speed is a superb brief summary of what has happened since the Supreme Court decreed that segregated education in the public schools cannot be squared with the command of the Constitution that all persons in this country are entitled to the equal protection of the laws. The law has been pronounced by the highest court of the land, and it is now perfectly clear what the law on this subject requires, but it will take time, and much travail, before integration is squared with the conscience of all Americans. All three books under review indicate that the integration fight has really just begun. It will be with us for a long, long time. Certainly now is the time for all good men to come to the aid of their principles.


DAVID FELLMAN

University of Wisconsin




Cite This Article as: Teachers College Record Volume 59 Number 8, 1958, p. 481-481
https://www.tcrecord.org ID Number: 4462, Date Accessed: 5/25/2022 11:23:23 AM

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