Racial Segregation In Public Schools Research Articles

The Effect of Charter Schools on School Segregation

We examine the impact of the expansion of charter schools on racial segregation in public schools, defined using multiple measures of racial sorting and isolation. Our research design utilizes between-grade differences in charter expansion within school systems and an instrumental variables approach leveraging charter school openings. Charter schools modestly increase school segregation for Black, Hispanic, Asian, and White students. On average, charters have caused a 6 percent decrease in the relative likelihood of Black and Hispanic students being exposed to schoolmates of other racial or ethnic groups. For metropolitan areas, our analysis reveals countervailing forces, as charters reduce segregation between districts. (JEL I21, I24, J15)

Psychiatrists Discuss Impact of Racism Across Generations

Psychiatrists Discuss Impact of Racism Across Generations

Charters and Choice: The New White Flight

White charter school enclaves — defined as charter schools located in school districts that are thirty percent or less white, but that enroll a student body that is fifty percent or greater white — are emerging across the country. The emergence of white charter school enclaves is the result of a sobering but ugly truth: when given a choice, white parents as a collective tend to choose racially segregated, predominately white schools. Empirical research supports this claim. Empirical research also demonstrates that white parents as a collective will make that choice even when presented with the option of a more racially diverse school that is of good academic quality. Despite the connection between collective white parental choice and school segregation, greater choice continues to be injected into the school assignment process. School choice assignment policies, particularly charter schools, are proliferating at a substantial rate. As a result, parental choice rather than systemic design is creating new patterns of racial segregation and inequality in public schools. Yet the Supreme Court’s school desegregation jurisprudence insulates from legal scrutiny racial segregation in schools ostensibly caused by parental choice rather than systemic design. Consequently, the new patterns of racial segregation in public schools caused by collective white parental choice are largely escaping regulation by courts. This article argues that the time has come to reconsider the legal and normative viability of regulating racial segregation in public schools caused by collective white parental choice. The article makes two important contributions to the legal literature on school desegregation. First, using white charter school enclaves as an example, it documents the ways in which school choice policies are being used to allow whites as a collective to satisfy their preference for segregated predominately white schools. Second, the article sets forth both constitutional and normative arguments for regulating the private choices that result in stark racial segregation patterns in public schools.

We Face the Dawn: Oliver Hill, Spottswood Robinson, and the Legal Team That Dismantled Jim Crow by Margaret Edds

Reviewed by: We Face the Dawn: Oliver Hill, Spottswood Robinson, and the Legal Team That Dismantled Jim Crow by Margaret Edds Lauren Pearlman We Face the Dawn: Oliver Hill, Spottswood Robinson, and the Legal Team That Dismantled Jim Crow. By Margaret Edds. Carter G. Woodson Institute Series. (Charlottesville and London: University of Virginia Press, 2018. Pp. xiv, 391. $29.95, ISBN 978-0-8139-4044-1.) Brown v. Board of Education (1954) remains a landmark U.S. Supreme Court case, roundly celebrated for overturning racial segregation in public schools and dismantling the "separate but equal" doctrine that had been law since 1896. But legal victories like Brown are usually built on prior defeats. In We Face the Dawn: Oliver Hill, Spottswood Robinson, and the Legal Team That Dismantled Jim Crow, journalist Margaret Edds tells the story of the heroic and painstaking work that led to Brown, through the lives of two lesser-known legal giants. Black attorneys Oliver Hill and Spottswood Robinson dedicated [End Page 500] their lives to dismantling Jim Crow. But as Edds shows, nothing was a foregone conclusion. Through a sharp legal strategy fashioned by Charles Hamilton Houston, their mentor at Howard University School of Law, Hill and Robinson took on clients throughout Virginia, crafted legal arguments about racial injustice, and battled inequality in the courts, often repeating the process when the outcome was not to their liking. At the heart of Edds's story are Hill and Robinson, two men whose personal lives and public work were full of hardships but also well-earned triumphs. Their journey is told in three parts: "Origins, 1907-1939," "Incubation, 1939-1950," and "Crucible, 1950-1963." Edds skillfully weaves in the social and political context of Virginia from the early to mid-twentieth century, as well as the state's role in the larger southern landscape. As she argues, Hill and Robinson were the "missing link" between "grassroots activists, top movement commanders, and the white jurists and legislators who often governed their fate" (p. 8). Through this retelling of their lives, one can see their legal strategy take shape. In Norfolk, for example, Hill and Robinson used the lesson of a racial discrimination challenge lost in state court to file a new suit on behalf of a new client in federal court, winning this time in the U.S. Fourth Circuit Court of Appeals. The U.S. Supreme Court's refusal to hear an appeal by the city of Norfolk cemented the victory, the first public school pay-equalization order to emerge from the federal courts. Hill and Robinson's work attracted the attention of students at the all-black Robert R. Moton High School in Farmville, Virginia. Initially these students demanded improved facilities. But by the time Hill and Robinson filed Davis v. County School Board of Prince Edward County in 1951, they sought the desegregation of education itself. The Davis case was one of five cases consolidated into Brown. But Hill and Robinson's work did not stop after the celebrated decision. During the 1960s, Hill's path led him toward government work and political organizing and Robinson's toward academia and the bench. Edds masterfully marshals evidence from newspapers, court documents, NAACP papers, and interviews with surviving family and friends to tell the biographies of these men. Her argument, however, is not groundbreaking. Scholars will not be surprised when she explains, "The civil rights movement did not begin in the 1960s" (p. 8). Historians have long studied the work of civil rights lawyers during the 1940s and 1950s and have long examined the spaces beyond the marches on Washington, D.C., and organization headquarters, where important work was done to end discrimination and segregation policies. There is certainly an argument to be made about the importance of Prince Edward County's school desegregation efforts: white Virginians were so determined to resist integration that they kept the county's public schools closed for five years. This story has long been overshadowed by the triumph of Brown and the subsequent test case at Arkansas's Little Rock Central High School. That said, this book is a well-written, thorough account of two important Virginians, and readers will find much...

Introduction

Introduction Melvin I. Urofsky The issue in your hands includes articles on many facets of the Supreme Court’s history, which, of course, has been our objective for many years. We hope that our readers will find time to put their feet up and enjoy learning more about our nation’s highest tribunal. When the Court recently handed down its decision in the same-sex marriage case, a number ofcommentators referred to Brown v. Board ofEducation (1954) to make a very important point. While the first case in a new field ofjurisprudence gets the headlines and the attention, the real work of implementing that decision will require years and other cases to determinejust how far the new ruling will go. Brown said that state-required racial segregation in public schools violated the Fourteenth Amendment’s Equal Protection Clause. But what about racial discrimination in places other than schools? Professor Steven P. Brown, the head of the political science department at Auburn, looks at one of these cases and its long history. Steven Girard, a wealthy nineteenthcentury Philadelphia merchant, left the bulk of his estate to found a school for white orphans. Although the gift was private, there were enough connections to the city to warrant a case for state action. Professor Brown traces the history of the bequest, and the fight that took place over integrating Girard College in the 1960s. It is a fine example of the devil being in the details. Evan P. Rothera is a graduate student in history at Pennsylvania State University, and his article on polygamy is the winner of this year’s Hughes-Gossett Student Prize. Most of us who teach constitutional history focus almost entirely on Reynolds v. United Statesem (1879) when we discuss the Court and polygamy. But as Rothera and others are showing, there is far more to the battle against polygamy than that one case, and it involved not only the high court but Congress and the Republican Party as well. It has been my good fortune to have Clare Cushman as the managing editor of the Journal ever since I took over. But Clare is not only a good editor, she is also the author of a number of books about the Court and its members. In 2011 she published 5 6 JOURNAL OF SUPREME COURT HISTORY Courtwatchers: Eyewitness Accounts in Supreme Court History, which has a wealth of little known anecdotes about the high court. The response was so enthusiastic that she is now co-publishing a volume (with Todd Peppers), Of Courtiers & Kings; More Stories by Law Clerks and Their Justices, from which the article on pre-1940 law clerks is adapted. The Framers of the Constitution gave federal judges tenure during good behavior, in other words, a lifetime appointment so they would be free from partisan political pres­ sures. The vast majority of the members of Justices have stayed until they retired or died, but a handful have left the Court to do something else. James F. Flanagan, emeritus professor of law at the University of South Carolina, looks at five of these Justices and helps us to understand why they did some­ thing so rare—resign from the U.S. Supreme Court. Abe Fortas was one of the most success­ ful lawyers in Washington, the head of a politically connected law firm, and the epitome of the old saw about New Deal lawyers who came to Washington to do good and stayed on to do well. He was a friend of Lyndon B. Johnson, who very much wanted him on the Court, a position that neither Fortas nor his wife wanted, but LBJ could not be stopped. Then, when Earl Warren wanted to retire as ChiefJustice, Johnson nominated his friend to take the center chair. Normally that would be the end of the story, but in fact it is just the beginning, as Robert David Johnson of Brooklyn College shows us. It is a tale with not one but many morals. Finally, we have a piece from my book on dissent and the Court. In that volume I try to show that a dissent is more than merely saying “I disagree.” A great dissent forces the...

BOOK/MEDIA REVIEWS

Dawn of Desegregation: J. A. De Laine and Briggs v. Elliot, by Ophelia De Laine Gona. Columbia, SC: University of South Carolina Press, 2010,216 pp., $29.95, paperback.Things don't just happen, you've got to make them.(De Laine Gona, 2010, p. 157).Such was the advice of Reverend Joseph Armstrong De Laine. It was 1952, and he had just filed the first lawsuit to challenge racial segregation in public schools in the United States. The case, which would be heard by the U.S. Supreme Court, was known as Briggs et al. v. Elliot (1952). It subsequently forced the state of the South Carolina to provide facilities for its African American students. There were many African American communities that sought to better the lives of their children by challenging segregation in education (Fairclough, 2007). Concurrently, the court tackled 4 other lawsuits: Boling v. Sharpe (1954), Brown, v. Board of Education, (1954), Gebhart. v. Belton, (1952), and Davis v. County Board of Prince Edward County (1952). By May, 1954, the court ruled that segregation in public schools was unconstitutional. The first case heard Brown, set the legal precedent; the other lawsuits and the notable people who perpetuated them have remained in relative obscurity.In Dawn of Desegregation: J. A. De Laine and Briggs v. Elliot, Ophelia De Laine Gona, the daughter of Rev. De Laine, chronicles the origins of the Briggs case and its impact. The author, who is passionate about people's struggles for equality, wrote the book so that the story would be accurate. She followed the historical research method, consulting primary sources (including her father's correspondence) and developed a narrative in relationship to the secondary sources. While her father is the central character of the book, she also credits the many African Americans of Clarendon County who lost their jobs, homes, and quality of life to challenge the status quo.In the first part of the book, she portrays the county's racial climate prior to 1948. In 1896, the U.S. Supreme Court had mandated a separate but equal system. But this doctrine placed African Americans at the bottom of the social order; for example, their children attended inferior and underfunded schools in comparison to their White counterparts. Black citizens were subjected to double taxation-because taxes disproportionately went to White schools, the African American community paid out of their pockets to help meet the financial demands of their respective schools (Walker, 1996).In fact, the Briggs case was about just getting a school bus. In 1946, Rev. De Laine was 48 years old, principal of a small elementary school, and pastor of a Methodist church. He agreed to go to the school board to ask for a bus for students who lived far from school. As the author explains in Part 2 of the book, by 1947, the proposal had turned into a lawsuit Pearson v. County Board of Education (1948), filed in the U.S. Eastern District Court of South Carolina. Meanwhile, Rev. De Laine became embroiled in a smaller skirmish for justice. Allegedly, a principal of an all-Black high school had pocketed money from the graduating seniors. Rev. De Laine helped to organize students to challenge that principal.A group formed to address inequalities in education, headed by Rev. De Laine. This group, Committee on Action, prepared a signed petition. But there would be dire consequences to their organizing efforts. Rev. De Laine was relieved of his principalship (only to be offered a position by the superintendent to save face-which De Laine refused). Furthermore, De Laine was slandered and received death threats. He was even challenged to a fist fight by a stooge of the city fathers. Many who signed the petition lost their jobs, lost credit, or were evicted. Despite the consequences, most African Americans continued to support the committee.Part 3 of the book describes what happened from 1950 to the 1954 Brown ruling. …

Originalism and Brown v. Board of Education

This article offers an originalist justification for the Supreme Court’s landmark decision almost sixty years ago in Brown v. Board of Education. We examine the thirty-seven State constitutions that were in effect in 1868, when the Fourteenth Amendment was ratified, and we conclude that three-quarters of the States in 1868 recognized access to a public school education as being a fundamental right at that time. Since the Fourteenth Amendment forbids racial discrimination with respect to fundamental rights, i.e. privileges or immunities of national and state citizenship, Brown v. Board of Education was correctly decided using the original public meaning approach of Justices Antonin Scalia and Clarence Thomas. We show that by 1954 fifteen of the Forty-Eight States had added clauses to their State constitutions specifically providing for racial segregation in public schools. A three quarters consensus about access to a desegregated education which existed in 1868 thus had vanished by 1954. We therefore suggest that Brown v. Board of Education finds more support in State constitutional law from 1868 than it does from State constitutional law in 1954. Contrary to the received understanding, Brown v. Board of Education is better justified using an originalist approach to constitutional interpretation than it is using a living constitution, evolutionary approach. The conventional wisdom about Brown v. Board of Education is thus shown to be completely and totally wrong.

The South in the Shadow of Nazism

The South in the Shadow of Nazism Stephen J. Whitfield (bio) Click for larger view View full resolution Could the evil of the Third Reich be entirely separated from consciousness of the evil of Jim Crow? Could the persecution of one minority provoke outrage, while official discrimination of another minority continued to induce indifference, silence, and rationalization? Adolf Hitler, Nuremberg, halftone photomechanical reproduction print from cigarette card, courtesy of the collections of the Library of Congress. [End Page 57] In 1944 the Carnegie Corporation of New York sponsored the publication of a landmark study, with which historians of race relations in the United States are very familiar: An American Dilemma. Economist Gunnar Myrdal, a Swede, had been selected to direct the project and write the study because his nation had no heritage of slavery, colonialism, or imperialism; therefore his impartiality could be presumed.1 In mid-century America the Carnegie Corporation could not have conceived of assigning the project to an African American scholar—like W. E. B. Du Bois, who actually knew something about the subject, the fruit of a lifetime’s study and experience. But Myrdal’s comprehensive study—the book weighed in at over one thousand pages, with ten appendices and two-hundred and fifty pages of notes—set in motion the acute awareness of the disjunction between democratic ideals and Jim Crow. Exactly a decade later, the unanimous Supreme Court decision of Brown v. Board of Education would acknowledge a terrible historic injustice. Its footnote #11, in citing An American Dilemma, served as a justification for outlawing racial segregation in public schools, which violated what Myrdal called the American Creed of egalitarianism. In 1944 the Carnegie Endowment for International Peace sponsored the publication of a consequential book by another European author. But Raphael Lemkin had come to the United States not as an invited and welcome visitor but as a refugee from Axis Rule in Occupied Europe, the title he gave his 712-page scholarly tome. A Polish Jew, Lemkin could not pretend to neutrality on this subject. In the Final Solution he lost forty-nine of his relatives (including his parents), which made the fate of his family typical of Polish Jews, of whom only one in ten managed to survive the catastrophe. There were no exact precedents to the paranoiac fury with which an advanced nation was extinguishing with calculated efficiency two out of every three European Jews. What the German occupiers were doing in Eastern Europe, Winston Churchill asserted in 1941, was “a crime without a name.” The famously articulate prime minister was rarely if ever at a loss for words. But it was left to Lemkin, an attorney who had taught international law at Duke University upon his arrival in the United States, to supply a name for that crime. The key to its analysis was a neologism he coined to describe atrocities that were still unfolding: genocide. Since 1944 a huge scholarly literature has emerged that draws upon and amplifies Lemkin’s definition of that word, its applications, and implications.2 Though the political campaigns that have been waged under the rubric of human rights have extended what Lemkin was the first to name, the juxtaposition of the simultaneous publication of those two Carnegie volumes inaugurates an argument about historical change. In the course of the two decades after 1944, the momentum against bigotry and discrimination gained remarkable force. An ideal of democratic inclusion came noticeably closer to fulfillment, especially outside the region. The impossibility of reconciling the value of equality with the practice [End Page 58] of Jim Crow doomed the South to the crisis that erupted in the 1960s, when the federal government demanded that the region live up more fully to the American Creed and conform more closely to the rest of the republic. Because segregation was once believed to be impregnable, and because southern white attitudes were held to be immutable, an explanation is therefore needed for the striking political and social change that punctuated the 1960s. Historians have offered multiple explanations for the transformation, ranging from the moral authority and political effectiveness of the Civil Rights Movement to the Northern effort to complete the liberal agenda...

The Equal Protection Component of the Citizenship Clause

On May 17, 1954 the Supreme Court handed down two decisions that for the first time categorically held that racial segregation in public schools was per se unlawful – Brown v. Board of Education and Bolling v. Sharpe. Ostensibly, both cases dealt with a same question; however, in Brown the entity accused of discrimination was a creature of the State of Kansas, while in Bolling the discrimination was practiced by the federal government. The problem that the Supreme Court faced was the language of the Fourteenth Amendment, which, by its own terms, guaranteed “equal protection of the laws” only vis-a-vis states and not the federal government. The Supreme Court recognized as much in Bolling, but ruled segregation illegal in the District of Columbia anyway. Bolling is now universally recognized as reaching an unquestionably correct result as a policy and moral matter. This recognition makes it all the harder for the adherents of originalism to defend their preferred approach to constitutional interpretation. Originalists are forced to concede that the Constitution, interpreted as originally understood, did not impose equal protection restraints on the federal government, and therefore, Bolling, in imposing these norms where they were not meant to be, was wrongly decided. Recognizing the political (and moral) problem with this approach, originalists have simply attempted to waive the problem away. The problem is that at least in the popular perception “[a] theory of constitutional interpretation that cannot account for Brown [and Bolling] is suspect if not discredited.” Some scholars, Robert Bork and Randy Barnett amongst them, have argued that although Bolling is indefensible as an originalist matter, this is not a real problem. According to them, even if Bolling were overruled no major problems would arise, if for no other reason than the federal government is politically constrained from running segregated schools or otherwise discriminating on the basis of race. This proposition is both dubious as a factual matter (or at the very least was so when Bolling was decided), and is unsatisfactory as a political matter. The general public is simply unlikely to buy into a judicial theory that would permit the federal government to discriminate at will on the basis of race. Accordingly, if originalism is to be broadly accepted by the public without being undermined by the discussion of Bolling and Brown, one needs to come up with a plausible explanation of how the results (if not the rationale) in those two cases can be supported under an originalist approach to constitutional interpretation. In this Article I argue that Bolling is justifiable as an originalist matter if one properly interprets the Citizenship Clause of the Fourteenth Amendment. Properly understood, the clause was meant to protect not just a right to a passport or nationality, but a much broader right of equal participation in the civic life of the Nation. The term “citizen” was understood by the framers and ratifiers of the Fourteenth Amendment to encompass a wide scope of political rights, including a right to equality before the law. When viewed from that perspective, it becomes apparent that Bolling was correctly decided not only from the political perspective, but from legal originalist one as well.

Mapping School Segregation: Using GIS to Explore Racial Segregation between Schools and Their Corresponding Attendance Areas

We examine whether student enrollment in nonneighborhood schools changes levels of racial segregation in public schools across urban school districts by comparing the racial composition of schools and their corresponding attendance area. This comparison was made possible by using geographic information systems (GIS) to link maps of elementary, middle, and high school attendance boundaries with 2000 census data, the Common Core of Data, and the Private School Survey for the 22 largest school districts. Results show that public schools would be less racially segregated if all children living in a school district attended their local, neighborhood schools. Similarly, findings reveal that private, magnet, and charter schools contribute to overall racial segregation within most school districts. Finally, while segregation levels in school catchment areas become lower from elementary to middle to high schools, the difference in segregation between catchment areas and the schools that serve them remains constant across all levels.

School Choice in Black and White: Private School Enrollment Among Racial Groups, 1990–2000

This study investigates how much the racial composition of communities influences the private school enrollment rates of members of different racial groups. Some scholars argue that private school enrollment contributes to racial segregation in public schools because White families attempt to enhance the social status of their children by leaving public schools serving communities with higher percentages of children who are Black. A second group of scholars argue that private school enrollment is primarily based on nonracial factors. A third, related perspective argues that race is of diminishing importance in driving behaviors such as school choice. This study explores these perspectives using 1990 and 2000 Public Use Micro Data Samples to estimate private school enrollment rates by student race and community racial composition. Findings indicate that private school enrollment rates among Asian, Black, and Hispanic students do not fluctuate much with community racial composition. By contrast, private school enrollment rates among White families are strongly and positively correlated with the percentage of children in their communities who are Black—even after holding constant a series of individual and community-level factors that may account for this trend. Moreover, the association between race and choice has changed little between 1990 and 2000.

Coloring Outside the Lines: Racial Segregation in Public Schools and Their Attendance Boundaries

Scholars have debated whether students' enrollment in private schools changes levels of racial segregation across urban school districts. The authors examine this issue by comparing the actual racial composition of schools with the racial composition of school-aged children living in the corresponding attendance areas. They do so by linking maps of school attendance boundaries with 2000 census data, the Common Core of Data, and the Private School Survey for the 22 largest U.S. school districts. The results show that public schools would be less racially segregated if all children living in a school district attended their neighborhood schools. In addition, private, magnet, and charter schools contribute to overall racial segregation within many school districts. The effects are particularly striking for segregation between white and Hispanic children. Finally, a few school districts with desegregation policies have succeeded in reducing racial segregation. The analyses contribute to debates regarding recent proposals to eliminate desegregation programs while simultaneously expanding “free-market” educational reforms that promote students' mobility across public, private, and charter schools.

A Continuity of Conservatism: The Limitations of Brown v. Board of Education

ON MAY 17, 1954, THE UNITED STATES SUPREME COURT ISSUED THE landmark ruling in Brown v. Board of Education of Topeka that laws mandating racial segregation in public schools were unconstitutional. Some civil rights activists reacted with caution to the decision, most conspicuously the man who had led the legal challenge against Jim Crow education, Thurgood Marshall of the NAACP Legal Defense and Educational Fund. Nonetheless, many supporters of the civil rights cause saw the ruling as a decisive breakthrough. Charles S. Johnson, president of the black Fisk University, articulated the excited sense of expectation that the ruling would break down social barriers not only in schools but in all areas of public life: If segregation is unconstitutional in educational institutions, it is no less so unconstitutional in other aspects of our national life. (1) The New York Amsterdam News was even more emphatic, declaring that 'The Supreme Court decision is the greatest victory for the Negro people since the Emancipation Proclamation. (2) Despite the initial optimism of civil rights campaigners, the process of school desegregation was beset by obstruction and delay. Although the era of massive resistance was relatively short-lived, white southerners subsequently succeeded through less confrontational tactics in restricting the implementation of the Brown decision. The defiance of federal authority by segregationists ignited a broad conservative reaction against the judicial activism of the Supreme Court, while Brown also inspired a southern white backlash against Washington that persists to the present day. My purpose is to assess how white southerners mobilized in opposition to school desegregation and then to turn to the longer-term impact of conservative political strategy. It has been argued that the Brown decision impeded the gradual process of racial change that had been taking place in the southern states since the late 1940s. According to this interpretation, the Supreme Court seriously miscalculated by selecting education as the target for a judicial assault on segregation rather than choosing the less emotionally sensitive area of voting rights or public transportation. Instead, the ruling undermined the reform of Jim Crow practices by provoking a militant backlash among southern conservatives. The integration of public facilities occurred because massive resistance stirred blacks into mobilizing a more effective protest movement that forced a previously complacent federal government to impose coercive civil rights legislation. (3) One of the principal criticisms of this analysis is that it overstates the momentum of racial reform in the pre-Brown South. The years during and immediately after World War II witnessed a resurgence in racial violence as whites attempted to repress the growing political assertiveness of the black population. Between 1941 and 1946, white lynchers murdered at least twenty-two African Americans. (4) Despite substantial increases in membership that occurred during the war, civil rights organizations struggled to score any decisive political breakthroughs. The efforts of southern blacks to build a stronger political power base through the integration of labor unions also suffered as a result of the racially divisive tactics of employers. Although there were some signs of change in the air, they were less a strong wind than a faint breeze. In the early 1950s several southern states attempted to preempt a legal challenge to public-school segregation by eliminating the most blatant disparities in educational facilities for black and white students. More than half a century after the Supreme Court decision in Plessy v. Ferguson, white southerners were finally taking measures to provide practical meaning to the doctrine of separate but equal. Yet such action only underlined their determination to protect the social order from federal interference. Proponents of the backlash thesis are more persuasive in their assertion that the Brown decision was not the principal catalyst for the development of the civil rights movement. …

The Judicial Bookshelf

The Judicial Bookshelf D. GRIER STEPHENSON, JR. Decisions by the Supreme Court that are accorded “landmark” status are chiefly remem­ bered for their holdings and effects. Such cases are also typically linked to a particular era of judicial history, as Marbury v. Madison1 was to the Marshall Court and Jefferson’s presidency, as Youngstown Sheet & Tube Co. v. Sawyer2 was to the Vinson Court and Truman’s presidency, and as Miranda v. Arizona3 was to the Warren Court and the tumultuous 1960s. But probably only serious students ofthe Court will recall that Marbury was decided in 1803, Youngstown in 1952, and Miranda in 1966. And fewer still will know, without first consulting a reference, that Marbury came down on February 24, the Steel Seizure Case on June 2, and Miranda on June 13. Scholars typically associate decisions with years, not the day ofthe month. Yet there are a few exceptions to this gen­ eralization. Activists on both sides ofthe abor­ tion controversy gather outside the Supreme Court Building each January 22nd, the anniver­ sary ofthe 1973 decision in Roe v. Wade.4 Stu­ dents of the presidency associate the transfer of executive power from Richard M. Nixon to Gerald R. Ford with July 24, 1974, when the Watergate tapes case5 was decided. And probably no date link is stronger than May 17, 1954, the day that Brown v. Board of Education (I)6 came down.7 That decision a half-century ago not only erased constitutional approval for state-enforced racial segregation in public schools (and, by implication, in all other official settings) but invigorated—jumpstarted , some would say—the modern civilrights movement. Among othermajordecisions, neitherRoe v. Wade nor Brown v. Board would ever have happened, however, without the Fourteenth Amendment. Ratified in 1868, this constitu­ tional legacy ofthe Civil War opened the door to substantial change in the relationship be­ tween the national and state governments. In combination with the Thirteenth Amendment of 1865, which abolished slavery, and the Fif­ teenth Amendment of 1870, which formally removed race as a criterion forvoting, the Four­ teenthAmendmenthasbeen calledthe “second American Constitution.”8 In particular, Brown was the end of a journey (and the start of another) that began with that amendment. In different ways, five recent books intersect the story ofthe Fourteenth Amendment at various points along the way. THE JUDICIAL BOOKSHELF 347 The major question surrounding the new Fourteenth Amendment in 1868 was the legal status of four million African Americans who had been slaves before December 1865 and the legal status of nearly half a million people of color, many residing in the middle Atlantic states, who had never been slaves or who had gained their freedom prior to the war. This photo depicts an Alexandria, Virginia slave pen in the 1860s. In contrast to the single objectives of the Thirteenth and Fifteenth Amendments, the Fourteenth was actually six amendments rolled into one. The first sentence of Section 1 ad­ dressed citizenship: “All persons born or nat­ uralized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” Those twenty-eight words constitu­ tionally consigned to the trash heap of history Chief Justice Roger B. Taney’s conclusion in Scott v. Sandford9 that the framers ofthe Con­ stitution never intended African Americans to be included within the meaning of the word “citizens” and so they could “claim none of the rights and privileges which that instrument provide[d] for and secure[d] to citizens of the United States.”10 The second sentence of Section 1 pro­ claimed new, broad, but undefined restrictions on state power: No State shall make or enforce any law which shall abridge the privi­ leges or immunities of citizens ofthe United States; nor shall any State de­ prive any person of life, liberty, or property, without due process of law; nor deny to any person within its ju­ risdiction the equal protection of the laws. The first clause borrowed language from Article IV ofthe Constitution: “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” The second clause drew verbatim from the due 348...

The Mississippi State Sovereignty Commission: civil rights and states' rights

In 1956, two years after the U.S. Supreme Court unanimously outlawed legally imposed racial segregation in public schools, Mississippi created the State Sovereignty Commission. This was the executive agency established protect the sovereignty of the State of Mississippi ...from encroachment thereon by the Federal Government. The code word encroachment implied the state's strong resolve to preserve and protect the racial status quo. In the nomenclature the formality of the word sovereignty supposedly lent dignity to the actions of the Commission. For all practical purposes the Sovereignty Commission intended to wage this Deep South state's monolithic resistance to desegregation and to the ever-intensifying crusade for civil rights in Mississippi. In 1998 the papers of the Commission were made available for examination. No other state has such extensive and detailed documentary records from a similar agency. Exposed to public light, they unmasked the Commission as a counterrevolutionary department for political and social intrigue that infringed on individual constitutional rights and worked toward discrediting the civil rights movement by tarnishing the reputations of activists. As the eyes of the citizenry studied the records, the Commission slid from sovereign and segregated to unsavory and abominable. This book, the first to give a comprehensive history of this watchdog agency, shows how, to this day, the Sovereignty Commission remains obscure, debated, and for many citizens a star chamber of the most sinister sort. Why was the Commission created? What were some of the political and social climates that initiated its creation? What were its activities during its seventeen years? What was its impact on the course of Mississippi and southern history? Drawing on the newly opened materials at the Mississippi Department of Archives and History, this examination gives answers to such questions and traces the vicissitudes that took the Commission from governmental limelight to public opprobrium. This book also looks at the attitudes of the state's white citizenry, who, upon realizing the Commission's failure, saw the importance of a nonviolent accommodation of civil rights.

The Site of Transition from Female to Male

IN THIS WORK I INTERROGATE MY LOCATION AS PHOTOGRAPHER while making pictures of Jake as he transitioned from female to male. At time Jake asked me to photograph his sex change in 1996, his name was Deb. Having never heard of gender dysphoria, state of mind which characterizes desire for gender reassignment, I was naive about complexity or intensity of process. What part did my own subjectivity, as a fiftyish black heterosexual woman from Southeast, play in constructing images of a thirtyish white Midwestern lesbian who was working to become a heterosexual man? The concept of changing one's identity was not new to me. While growing up I'd heard stories about slaves escaping to become free and light skinned blacks passing for white. In 1848, a woman named Ellen Craft did both. In her husband's 1860 narrative about their journey, he wrote, It occurred to me that, as my wife was nearly white, I might get her to disguise herself as an invalid gentleman, and assume to be my master, while I could attend as his slave, and that in this manner we might effect our escape. For Crafts, crossing Mason Dixon line was contingent on Ellen successfully crossing boundaries of black to white, slave to owner, woman to man and wife to master. The history of passing, its assumption of fraudulently trespassing, and its question of authenticity seemed to parallel Jake's quest. But from stories he told me about middle class life in Indiana and his parents' opposition to ending defacto (by practice) racial segregation in public schools he attended, I got impression that he did not relate his situation to that of blacks. Even before Civil Rights Movement was being shaped in 1950s, my mother had made the fight for racial equality part of our lives. I never forgot my feelings of rage when confessed kidnappers of Emmett Till were acquitted. He was fourteen-year-old black boy who was beaten, shot in head and thrown in Tallahatchie River because he spoke to a white woman in Money, Mississippi. This event is just one of many which marks my work. Although Jake's act had its own value and meaning, it was not my issue and I was wary of ethical and political violence inherent in speaking for others. On top of that, Jake wanted to be kind of man who embraced patriarchal and misogynistic values. Why would I, a black feminist, choose to work with a person who had Jake's values? The answer lies in having always lived and worked with people who are racist and/or sexist. Within this was formed my blueprint for self-destruction and survival. Grudgingly I have had to admit that each of us is more complicated than our labels would imply. Admittedly, I had a hard time understanding why Jake could not remain masculine female which he had been, but I halfway understood impulse to want to fit into mainstream culture. From beginning I felt conflicted in my role as a documentary photographer. For one thing it was not my field of work. In order to understand and perhaps resolve being at odds in my role as interpreter of Jake's process, I taped our dialogues, researched transsexuality and maintained a personal journal. My photographic objective was to show body's physical alterations. I saw my 4 x 5 view camera as a tool to create visual evidence of body's transformation. In our second photo shoot, I asked Jake to disrobe. Since he had seemed so relaxed, his discomfort in undressing in front of camera threw me off a bit. Embarrassed to see his agonizing self-consciousness, I felt thrust into role of voyeur. I averted my gaze, gave him some privacy by not looking straight at him. Thinking reflection, reflecting, I turned my camera towards dresser mirror. That session was probably most difficult one for Jake. …

An Analysis of Factors Affecting School Social Integration

The role of the school as a primary socializing agent for society has often been recognized. Desegregation of this all-important institution has been of major national and local concern since 1954 when racial segregation in public schools was declared unconstitutional by the U.S. Supreme Court. School desegregation has several objectives, including the raising of minority group academic achievement, closing the gap in black-white achievement, the promotion of cross-racial friendliness, and increasing the self confidence and effective aspirations of black children. Mental health professionals are particularly interested in the individual and group effects of school desegregation. Much research has been directed at all of these areas of inquiry, yet few studies have considered the interconnections of the above goals. St. John' recognized this shortcoming in the research. In a review of the studies of desegregation outcomes for children, she analyzed the experimental findings in relation to the studies which singly looked at such variables as academic achievement, self confidence, locus of control, and interracial social behavior. It is important to consider each of these lines of research.

Politics and Law in the Little Rock Crisis, 1954-1957

On the morning of September 3, 1957, the world learned that Gov. Orval Faubus of Arkansas had blocked the federally mandated integration of Little Rock Central High School. The governor's action initiated a confrontation between state and federal authority that persisted for two years.1 Proponents of integration believed that political ambition was behind Faubus's decision to obstruct integration.2 Supporters of segregation, however, traced the controversy to the community's stand for states' rights against an impending Communist threat and the unconstitutional use of federal judicial and executive power.3 Other analyses have stressed the need to understand the complex factors giving rise to and perpetuating the Little Rock crisis, emphasizing a failure of leadership in the national government and on the local level to adequately prepare the city of Little Rock for integration.4 Recognizing that the origins of the crisis were complex, this study examines the role of law as a political and social force influencing the course of events leading up to the fateful day of September 3. The examination shows that both supporters and opponents of integration developed justifications for their positions based upon the value of the rule of law. This reliance upon legalism increasingly became absorbed in political considerations, which in turn created uncertainty as to the constitutional basis of integration. The interplay of law and politics shaped decisions concerning integration that resulted in confrontation and conflict.5 The integral connection between federal judicial action and local politics began in 1954 the Supreme Court's landmark Brown decision. While unanimously and clearly holding that racial segregation in public schools was unconstitutional, the Court also ordered further argument concerning the decision's implementation. The Court considered this issue during the spring of 1955. In order to give thorough consideration to wideranging factors involving compliance, the Court invited the states affected to submit briefs on the situations in their public schools and local communities. These briefs pressed upon the Court the need for attention to local circumstances in the enforcement of Brown. On May 31, the Court responded to these pleas by ordering that integration should proceed with all deliberate speed. The intent of the 1955 decision (known thereafter as Brown II) was to give localities maximum flexibility while obligating them to a prompt and reasonable start toward integration. In practical terms, this meant, however, that state officials, local school boards, and federal district judges had been given an ambiguous mandate that could be interpreted to justify delay and gradualism.6 Local political considerations influenced the drafting of the brief filed by Arkansas during the hearings preceding the Brown II decision. Even though the state's attorney general was nominally in charge of drawing up the brief, its contents and approach were formulated by Richard B. McCulloch, an attorney from the east Arkansas community of Forrest City. East Arkansas included the Mississippi delta region where plantation agriculture was predominant. In this region, a majority of the state's blacks lived, outnumbering whites in some areas. Delta blacks also provided vital labor for the area's economy. McCulloch, a graduate of Harvard Law School and recognized among members of the state's bar as a leading constitutional lawyer, had been hired by several delta school districts to represent their interests as Arkansas moved toward compliance the Supreme Court's overruling of segregation. Regional alignments of counties dominated legislative and gubernatorial politics in the state. The delta counties represented a major political force; elected and appointed officials from the region were influential in the state's public schools administration. Through this influence, McCulloch was given an instrumental role in putting together the Arkansas brief for Brown II. …

Racial Segregation in the Public Schools

This paper presents data on racial segregation in public elementary schools in 60 cities for the 1967-68 school year. Wide variation was found among school districts in the fundamental demographic constraints confronting school systems seeking to desegregate. The percentage Negro among students varied from less than 5 to more than 90. Among instructional staffs the percentage Negro ranges from a low of 2 to a high of 84. Levels of racial segregation were typically high. The index ranged from a low of 39 in Sacramento to a high of 97 in Tulsa and Okalhoma City. The average level of school segregation among the 60 cities was 79. The task of desegregation for each city was estimated using an index that reflects both the degree of segregation and the racial composition of students. Cities in the South would have to permit an average of 32% of their students to shift schools compared with 26% in the North. Finally, the segregation of students of one race from teachers of another was determined. Teachers of one race are typically assigned to students of that race.

Measuring School Desegregation

In the Brown decision of 1954, the United States Supreme Court declared racial segregation in public schools to be unconstitutional.1 In this and in succeeding decisions, the Court called for a qualitative change in public policy from dual or racially segregated school systems to unitary or desegregated systems. While these decisions resulted in a dismantling of the legal foundations of segregated education, they often failed to alter significantly the actual racial balance of students attending public schools. Racial isolation continued with the vast majority of black and white students attending schools primarily with members of their own race.3 In time, Federal Courts began to require quantitative changes in the racial balance of schools as a test of qualitative change.4 In its attempts to enforce school desegregation, the Department of Health, Education and Welfare has similarly focused on quantitative indicators of change in the racial composition of schools.5 Despite the fact that legal and administrative decisions concerning school desegregation have rested increasingly on quantitative concepts, little attention has been directed toward the development of a uniform and rigorous method for measuring school desegregation. The purpose of the present article is to suggest such a measure.