Justice Harlan’s “Great Betrayal”? A Reconsideration of Cumming v. Richmond County Board of Education

Abstract

Justice Harlan’s “Great Betrayal”? A Reconsideration of Cumming v. Richmond County Board of Education C. ELLEN CONNALLY In 1899 the Supreme Court of the United States decided the case of Joseph W. Cumming, James S. Harper, and John C. Ladeveze v. The County Board of Education of Richmond County, State of Georgia.1 The litigation arose after the all-white Richmond County School Board closed Ware High School, a segregated, tax-supported, all-black high school in the City ofAugusta, GA. The plaintiffs did not seek integration ofthe Augusta Public Schools. They did not lodge a complaint regarding the separation by race of children in the primary grades. They did not attempt to compel the board to provide a high school for blacks. Their demand was for injunctive relief that would force the closing of the white high school through the withholding of tax support until the black high school was reopened. This approach succeeded in the trial court but failed in the Georgia Supreme Court.2 In an opinion written by Justice John Marshall Harlan, the Justice who had just three years before asserted that the constitution was color­ blind,3 the Supreme Court of the United States sustained the ruling of the Georgia Supreme Court denying the request for injunctive relief. Ware High School was not reopened. Historians andlegal scholars cite Cumming v. Richmond County BoardofEducation as the first school desegregation case decided by the Supreme Court of the United States.4 It was also the decision that first applied the doctrine of separate-but-equal to public schools,5 and held that separate schools do not violate the Equal Protection Clause of the Fourteenth Amendment.6 Cumming also established the proposition that tax-supported state schools are within the purview of the states and must not be disturbed by the federal government ex­ cept in cases in which federal rights are in­ volved.7 With such significant findings attrib­ uted to the case, it is interesting to note that Cumming has only been cited by the Supreme Court six times since 1899.8 In 1980, historian J. Morgan Kousser used Cumming v. Richmond County Board as the framework for his study of the black elite in HARLAN’S “GREAT BETRAYAL”? 73 A bird's-eye view of Augusta, Georgia, in 1872 shows the building that housed Ware High School (indicated by arrow), the first public high school for African Americans in Georgia and one of only five such schools in the South in that era. This is the only known image of the school building, which was demolished after it was closed in 1897 by the Richmond County School Board. late nineteenth-century Augusta.9 Kousser’s stands as the only in-depth study of the case.10 To the extent that Kousser related the social history of Augusta’s black elite, he was very successful. However, as the 100th anniversary of the Cumming decision approaches, Kous­ ser’s misinterpretation ofsome legal aspects of Cumming and its misinterpretation by some courts makes timely a reconsideration of the case and its legacy. A careful analysis of the ruling in Cum­ ming demonstrates that the decision did not deal directly with the issue of racial segrega­ tion in public schools. Because the existence of a black high school was at issue, lower federal courts and state courts fashioned a separatebut -equal formula for schools out of Plessy v. Ferguson'1 and Cumming, later including Berea College v. Com. OfKentucky.12 In refer­ ring to Cumming, historian Loren Miller says that “[i]n time the fiction grew that the Su­ preme Court had considered and determined th[e] issue with finality, whereas the truth was that it had only skirted around the question and had spoken only by evasions and indirec­ tions.”13 Cumming was misread and misinter­ preted in order to justify society’s desire to maintain segregated schools, a tradition thathas a long and tragic legacy in American society. The roots of Cumming v. Board ofEduca­ tion lay in the black community of Augusta at the conclusion of the Civil War. The desire of the freedmen there to gain an education, cou­ pled with the desire ofthe...