Читать книгу The Smart Culture - Robert L. Hayman Jr. - Страница 21

The stories of the massive grassroots civil rights movement of the mid-twentieth century and of the NAACP’s concurrent legal struggles have been told masterfully elsewhere. The aim here is to briefly examine the radical revision of the official epistemology of inequality that took place in that time period, a revolution in thought inherent in the Supreme Court’s decision in Brown v. Board of Education.²⁵

Two cases presaged Brown and perhaps made that decision inevitable: the 1948 case of Shelley v. Kraemer and the 1950 case Sweatt v. Painter.

Shelley v. Kraemer. Racial segregation was still very much the norm in America after the Second World War. Educational segregation was somewhat more pronounced in the South, where it was mandated by law, but residential segregation was pervasive throughout the country. The NAACP targeted both: it sought a declaration that racial segregation, in schools and in housing, violated the equal protection guarantee of the Fourteenth Amendment.

The problem with residential segregation was that it appeared to be completely beyond the reach of the Fourteenth Amendment. There was some public housing in post-war America, but most housing was privately owned and most residential segregation was, accordingly, the result of private discrimination. After Justice Bradley’s opinion in the 1883 Civil Rights Cases, such discrimination did not even implicate the Fourteenth Amendment: only through “state action”—through discrimination by public officials, not private individuals—could Americans be deprived of the “equal protection of the laws.”

The discrimination in Shelley v. Kraemer was, under Bradley’s artificial dichotomy, apparently “private”: individual homeowners had agreed that they would not sell to “non-Caucasians,” and had memorialized their agreements in restrictive covenants in their deeds. But the Supreme Court, in an opinion written by Chief Justice Fred Vinson, ruled that those covenants had been effectuated only through the actions of state judicial officials, and judicial enforcement of the covenants—without which the restrictions would be meaningless—was “state action” for purposes of the Fourteenth Amendment. It was, on the one hand, merely common sense: of course judges are public officers, and of course their actions are state actions. But it exposed, on the other hand, the deep conceptual problems with Bradley’s public-private dichotomy: no action or decision, and certainly no agreement, is purely private, since all are shaped by and implicitly conditioned on the existence, or absence, of legal sanctions. Or, as Bradley himself had put it, the law “is over, under, in and around, every action, that takes place.”

But there was another problem in Shelley: the state courts were not discriminating; they would enforce all restrictive covenants. The argument was in part that it was the private parties, not the courts, who harbored the racial animus. That did not matter, Vinson insisted, because “the effect” of state action was the denial of constitutional rights.

The argument was also in part the argument of symmetry that had prevailed in Plessy v. Ferguson: there was no legal inequality when the state merely makes a distinction, but otherwise treats all parties, black and white, the same. The state courts, the argument went, would enforce all racially restrictive covenants, separately but equally. But Chief Justice Vinson refused to be lured into the conundrum. There was, first of all, no real evidence that restrictive covenants were being enforced against white home buyers. Moreover, symmetrical application would not cure the constitutional defect: “Equal protection of the laws is not achieved through indiscriminate imposition of inequalities.” This last was conceptually unsatisfying and rhetorically oxymoronic: it is difficult to find discrimination in indiscriminate behavior. Still, at an intuitive level, Vinson had come closer to the truth: there was something quite unequal going on here, and the state was clearly complicit.²⁶

Sweatt v. Painter. Two years later, the Court struck another blow against the formalist conception of equality. Hemann Sweatt had been denied admission to the University of Texas Law School because of his race; under the separate but equal rule, Texas offered to start a new law school for Sweatt and other black Texans. By the time the case of Sweatt v. Painter found its way to the Supreme Court, the new “black” school was in fact open and operating.

But it was not enough. “We cannot find,” Vinson again wrote for the Court, “substantial equality in the educational opportunities afforded white and Negro law students by the State.” The Court examined both “tangible and intangible factors” to reach its conclusion: resources and facilities on the one hand; reputation and “practical” opportunities on the other. It was precisely the sort of realistic inquiry foreclosed by Plessy’s formalism, and it was certain to expose the “thin disguise” of most separate but equal schemes.²⁷

Brown v. Board of Education (Brown I). Four years later, of course, the Supreme Court found in Brown v. Board of Education that “separate but equal” public education was not in fact “equal” at all. The assault on formalism implicit in Shelley and Sweatt nearly demanded this result: Shelley had suggested that racial distinctions were, somehow, unequal, even when they were applied across the board, while Sweatt had demonstrated how this inequality could be manifest in both tangible and intangible ways. Brown, in a sense, simply filled in the blanks. And yet, for at least two reasons, the decision was remarkable all the same.

Part of it was the context. These were not restrictive covenants or law schools; these were public schools, primary and secondary, and changes here would be far-reaching. And these were not revolutionary times: Rosa Parks refused to give up her seat on a Montgomery bus to a white man in December 1955, a full year and a half after the first Brown decision. Whatever the state of legal thought, then, Brown was not, in a practical sense, merely conventional at all.

And, for that matter, it was not conventional in purely legal terms. Chief Justice Earl Warren did in Brown what Vinson had declined to do in Sweatt: he explicitly rejected the “separate but equal” rule of Plessy, in part by rejecting Plessy’s absurd suggestion that the badge of racial inferiority is self-imposed. Simultaneously, Warren did in Brown what Vinson had been unable to do in Shelley: he identified the inequality that inhered even in “indiscriminate” racial segregation. Compulsory segregation, Warren concluded, generated a stigma of racial inferiority: this was the inequality, and it inhered in the very fact of segregation, and it was why—whatever the “tangible” differences between the schools—the segregation of public school students was inherently unequal.

Moreover, Warren sought to prove it, and his efforts took him outside the insular realm of the law, beyond legal abstraction and vacuous form, and into the world of experience. It was common sense, in part—as for Harlan, “everyone knows” the real message of Jim Crow—but it was also evidence from the social sciences: a short footnote provided a cursory summary of the evidence establishing the connection between racial segregation and self-concept, and between self-concept and achievement. A brief full of evidence had been submitted to the Court by a coalition of social scientists; to them, Warren’s footnote seemed almost perfunctory. But to conventional legal thinkers, this brief acknowledgement of other disciplines—even the suggestion that there was a social world in which equality might be measured—was revolutionary; and for many of them, it was also wrong.²⁸

Brown v. Board of Education (Brown II). Brown I declared that segregation was unconstitutional, but it did not determine the appropriate remedy. That decision it postponed for a year, till the reprise of the case in Brown II. The Court there seemed to retreat: it remanded control of the cases to the local district courts and ordered desegregation to proceed “with all deliberate speed.” It seemed a recipe for disaster. The local federal judges were, after all, a part of the segregated community—“steeped in the same traditions that I am” rejoiced Georgia Lieutenant Governor Ernest Vandiver—and the Court’s ambiguous rhetoric hardly gave them a decisive mandate. But their performance surprised: district courts decided nineteen desegregation cases within a year of Brown II> and the plaintiff NAACP prevailed in every case. Typical was the decision of Louisiana district court judge J. Skelly Wright: “The magnitude of the problem may not nullify the principle. And that principle is that we are, all of us, Americans, with a right to make our way unfettered by sanctions imposed by man because of the work of God.”

As for the Supreme Court, it is hard to say what happened between Brown I and Brown IL For some, Brown II was proof that white America was not serious about racial equality. NAACP attorney Lewis Steel wrote that “Never in the history of the Supreme Court had the implementation of a constitutional right been so delayed or the creation of it put in such vague terms. The Court thereby made clear that it was a white court which would protect the interests of white America in the maintenance of stable institutions.” Years later, Professor Derrick Bell would survey the law and reach the same result: the Cold War gave white America a reason to declare segregation unconstitutional in Brown/, but white America had no interest in achieving real integration. Brown II merely demonstrates Bell’s “interest convergence” thesis: the Supreme Court grants equality to black Americans only when, and to the extent that, it converges with the interests of white America.

For others, Brown II was more a strategic retreat. The reaction to Brown I was stronger, perhaps, than the Court had anticipated, and official support for the Court’s position was undoubtedly much weaker. Warren waited in vain for an expression of support from the White House; Eisenhower, personally conflicted over the matter, remained resolutely silent. “If Mr. Eisenhower had come through,” Associate Justice Tom Clark would later say, “it might have changed things a lot.” But Eisenhower was noncommittal. The president of the newly formed Southern Christian Leadership Conference made repeated attempts to coax a statement of public support for the Brown decision, but always Dr. Martin Luther King’s efforts were to no avail. After a fruitless meeting with Eisenhower, King reported, “I fear that future historians will have to record that when America came to its most progressive moment of creative fulfillment in the area of human relations, it was temporarily held back by a chief executive who refused to make a strong positive statement morally condemning segregation.” Interestingly, Dr. King did find one friend in the administration, one official who publicly said: “There is a vital need for America to recognize that this is basically a moral problem.” “If he’s not sincere,” King said of Vice President Nixon, “he is the most dangerous man in America.”²⁹

Cooper v. Aaron. Eisenhower’s hand, meanwhile, had been forced to some extent by the events in Little Rock, Arkansas. The all-white Central High School was to be desegregated by nine black students at the beginning of the 1957 school year, and despite the incendiary rhetoric of state officials, the effort was expected to proceed peacefully. But on the appointed day, Governor Orval Faubus sent the Arkansas National Guard to Little Rock, ostensibly to maintain the peace, but effectively to block the admission of the students. After a two-week stalemate, and a private meeting with President Eisenhower, Faubus called off the guard. But by now, the guard was genuinely needed: an angry white mob was assembling at the school each morning; desegregation would be impossible without protection. Melba Pattilo Beals was one of the nine students; she described what happened on Monday, September 23:

The first day I was able to enter Central High School, what I felt inside was terrible, wrenching, awful fear. On the car radio I could hear that there was a mob. I knew what a mob meant and I knew that the sounds that came from the crowd were very angry. So we entered the side of the building, very, very fast. Even as we entered there were people running after us, people tripping other people. Once we got into the school, it was ver}” dark; it was like a deep, dark castle. And my eyesight had to adjust to the fact that there were people all around me. We were met by school officials and very quickly dispersed our separate ways. There has never been in my life any stark terror or any fear akin to that.

I’d only been in the school a couple of hours and by that time it was apparent that the mob was just overrunning the school. Policemen were throwing down their badges and the mob was getting past the wooden sawhorses because the police would no longer fight their own in order to protect us. So we were all called into the principal’s office, and there was great fear that we would not get out of this building. We were trapped. And I thought, Okay, so I’m going to die here, in school. And I remember thinking back to what Fd been told, to understand the realities of where you are and pray. Even the adults, the school officials, were panicked, feeling like there was no protection. A couple of kids, the black kids that were with me were crying, and someone made a suggestion that if they allowed the mob to hang one kid, they could then get the rest out.

On Wednesday, September 25, a frustrated Eisenhower recognized that the costs of inaction outweighed those of acting; he sent the 101st Airborne to Little Rock to secure the safety of the nine black students. That day, Beals would later recall, “I went in not through the side doors, but up the front stairs, and there was a feeling of pride and hope that yes, this is the United States, yes, there is a reason I salute the flag, and it’s going to be okay.”

For the Supreme Court, however, the dispute in Little Rock was just beginning. The school board requested a two-year hiatus from the desegregation effort; the federal courts refused to grant it. The dispute went to the Supreme Court, which convened an extraordinary special session in September 1958.

What made the dispute in Cooper v. Aaron so remarkable was its subtext. The explicit premise of most of the resistance to Brown had been the contention that the case was wrongly decided and that, accordingly, state authorities were not bound by the Supreme Court decision. Implicit here was an important shift in the argument against equality.

For almost two centuries, the argument had been that the Constitution cannot secure equality: even the expressed guarantee of equality under law was said to be powerless to redress the inequality inherent in the natural order. But the “natural order” was on shaky grounds in 1950s America: its “science” had been discredited by the revolution in the social sciences, on the one hand, and advances in genetics and the “hard” sciences, on the other, and its politics had been rendered increasingly untenable, first, by a devastating Depression, and then, by the horrors of the Holocaust. The Supreme Court’s decision in Brown demonstrated that the law would no longer embrace the order’s central premise: racial inferiority was a product not of nature, but of state action. Races were not created unequal, they were re-created that way by discrimination.

So the argument, of necessity, was modified: it was not so much that the Constitution cannot secure equality, but rather, the new claim went, that the Constitution simply does not secure equality because of the enduring principles that inhere in it. The Constitution might in theory have contained a leveling principle, but it in fact does not: the fundamental precepts of our Constitution—states’ rights, local authority, private freedom, individual liberty—reflect a very different set of choices. Brown, the argument went, was wrong not because it attempted to do the impossible, but because it attempted to do the forbidden: in the name of equality, it violated not the natural order, but our constitutional one. Plessy v. Ferguson was the law; Brown violated it.

But what the argument assumed was a Constitution with a fixed meaning. It assumed that the document embodied an uncontested set of principles; that those principles would yield just one answer to constitutional questions; that this one right answer could be determined; and that the answer was absolute and constant. It assumed away the compromises that produced the document, both originally and in its reconstruction; it assumed away the ambiguities—some conscious, some not—that inhere in the grand terms of the text; it assumed away the indeterminacy that attends the interpretive process, an indeterminacy that is heightened with the level of abstraction; and it assumed away the unavoidable influences of context—of individual perspective and historical setting. And it assumed, as a consequence, that yesterday’s tradition would be tomorrow’s norm: as the governor of Alabama would put it, “segregation today, segregation tomorrow, segregation forever.”

For the Supreme Court, what was at stake was nothing less than its institutional authority: its ability—its power—to declare what the law is. On this score, the Court had to be unequivocal. In an opinion separately signed by all nine justices—the first and only such opinion in Supreme Court history—the Court emphatically declared that “the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land, and Art. VI of the Constitution makes it of binding effect on the States ‘any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.’”

The rest followed easily, but was important all the same. The school board argued that the delay was necessitated not by its misconduct, but by private actions: private threats, private violence, private unrest, private uncertainty. But, the Court responded, those conditions were directly traceable to official actions. Eroding still further Bradley’s dichotomy, the Court ruled that private behaviors brought about by public action were within the reach of the Fourteenth Amendment. The board also argued that it had acted in good faith, a not untenable claim; regardless, the Court responded, the rights of the schoolchildren to attend desegregated schools could not be frustrated by state action, “whether attempted ingeniously or ingenuously.’” Nothing less than compliance with the constitutional mandate would satisfy the Court: “Our constitutional ideal of equal justice under law is thus made a living truth.”³⁰

Loving v. Virginia. A decade later, the Court finally completed the dismantling of Jim Crow. Virginia’s antimiscegenation statute prohibited interracial marriages involving its white citizens; a minor exception permitted white Virginians to marry persons with some “Indian blood,” a tribute to the descendants of Pocahontas. The statute was part of a 1924 law entitled An Act to Preserve Racial Integrity, but it was clear that Virginia was interested in preserving the “integrity” of just one race.

The law was hardly an anomaly. In 1952, thirty-one states prohibited interracial marriages; fifteen years later, Virginia was one of sixteen states that still prohibited “miscegenation.” These were not anachronisms: Hollywood’s Motion Picture Code banned portrayals of interracial marriages until 1956, and it was not until late 1967 that Sydney Pokier interrupted Spencer Tracy’s quiet evening in Guess Who’s Coming to Dinner