Chapter XV: Part III: Prayer of the Petitioner (2)

For the absolute amateur, coming cold into the field of anthropology, E. E. Evans-Pritchard’s BBC lectures, _Social Anthropology_, offer a most congenial introduction. This should be followed, I suggest, by Alfred Louis Kroeber’s _Anthropology_, originally published in 1923 and updated in 1948. It is hard work. Then, in a hard-driving rush: Ralph Linton’s _The Tree of Culture_, Carleton S. Coon’s _The Story of Man_, Hooton’s _Apes, Men and Morons_ and _Up from the Ape_, Clyde Kluckhohn’s _Mirror for Man_; almost anything by Toynbee and Breasted; and warming to the more immediate theme, Franz Boas’ _Anthropology and Modern Life_ (1928) and his _Race, Language and Culture_ (1940). Boas was the great-granddaddy of the whole Liberal movement in social anthropology; he influenced a generation or more of dutiful followers. Melville Herskovits, of Northwestern, has written (1943) an agreeable biography of him. It merits a reading. And so do Herskovits’ own works, _The American Negro_ (1928) and his more definitive _The Myth of the Negro Past_ (1958). Otto Klineberg’s works are important: _Negro Intelligence and Selective Migration_ (1935) and the useful anthology, _Characteristics of the American Negro_ (1944). The famous UNESCO pamphlet on race has been covered in the text; Ruth Benedict and Gene Weltfish belong in a footnote. A very small footnote. Ashley Montagu, a monstrously irritating man, has to be read, or at least scratched: _Man: His First Million Years_, _Human Heredity_, and _Man in Process_. This last work I fetched home only a week ago. I do not like Ashley Montagu. Langston Hughes’ _African Treasury_ is about what you would imagine Hughes would put out. Better, on African background, are John Coleman De Graft-Johnson’s _African Glory: The Story of Vanished Negro Civilizations_ (1955) and Maurice Delafosse’s _The Negroes of Africa_ (1931). But the bibliography in this area is extensive, and it grows more rapturous all the time. _The African Colonization Movement_, by P. J. Staudenraus (1961) is as good a roundup of this early nineteenth-century movement as I have come across.

In the text, I have called attention to Dr. Audrey M. Shuey’s _Testing of Negro Intelligence_. Let me call repeated attention to it here. This is an indispensable reference work, of unimpeachable integrity, for any student who proposes seriously to investigate Negro scores on intelligence tests. The student also should seek out Dr. Henry E. Garrett’s _Great Experiments in Psychology_ (1951), and he should get his subscription in to _Mankind Quarterly_, 1 Darnaway St., Edinburgh 3, Scotland. At the University of Chicago, Dr. Dwight J. Ingle has demonstrated a fierce and wonderful courage in admitting unorthodox views to his _Perspectives in Biology and Medicine_, in which Dr. Montagu has been recently skewered.

This gets me, by hop, skip and jump, to reference works in the area of Constitutional history, law, and contemporary politics. The _Federalist_, of course. Elliot’s _Debates_. Madison’s _Notes_. Tocqueville. Jefferson’s Letters. Madison. There is no stopping point. The biographies of Marshall and Washington. James Morton Smith’s _Freedom’s Fetters_. Bibliography is futile. The student of the Constitution will read a thousand works, and then read a thousand more. He shouldn’t miss Charles Warren’s _The Supreme Court in U.S. History_. Yale’s Fred Rodell is a derisive fellow; his _Nine Men_ is a fine, extended raspberry cheer, but it should be read. Most of the members of the Court have been loquacious; they cannot keep their tongues tied down. The law reviews fairly bulge with important material. Robert B. McKay’s long essay in the _New York University Law Review_ (June, 1956) is no help to my position, but it merits a reading. Basic source material, of course, is available through the indispensable _Race Relations Law Reporter_. The student interested in getting both sides of this dispute should look up Senator Eastland’s “Era of Judicial Tyranny,” available through the Citizens Council, and Alfred J. Schweppe’s article in the American Bar Association’s _Journal_ of February, 1958, “Enforcement of Federal Court Decrees.” On the question of private schools, a biased and snippy book by Donald Ross and Warren E. Gauerke, _If the Schools Are Closed_, merits a reading. The two Emory professors are anti-private school, but the source material is there. I have already mentioned Charles J. Bloch’s _States Rights: The Law of the Land_; it is a first-rate piece of work.

On the Fourteenth Amendment: Joseph B. James’ work is basic, _The Framing of the Fourteenth Amendment_ (1956). See also Walter J. Suthon’s article in the _Tulane Law Review_ at December, 1953, “The Dubious Origin of the Fourteenth Amendment”; Horace E. Flack’s “The Adoption of the Fourteenth Amendment,” in _John Hopkins Studies_ (1908), and Joseph F. Ingham’s “Unconstitutional Amendments,” in the _Dickinson Law Review_ of March, 1929, among many other sources.

It is futile to attempt any bibliographical note on the specific subject of school desegregation since 1954. The library of the Southern Educational Reporting Service in Nashville is a storehouse of material to be found nowhere else. I am indebted to Reed Sarratt and his associates there for making its riches available to me. Don Shoemaker’s _With All Deliberate Speed_; Harry Ashmore’s _The Negro and the Schools_; and _Public Education in the South Today and Tomorrow_, by Ernst W. Swanson and John A. Griffin (1955), are basic references. Any serious study must take in the annual reports of the various Southern State superintendents of public education. Bill Simmons, the urbane and immensely attractive executive director of the Citizens Council in Jackson, Miss., has a wealth of material available; student debaters who get stuck with the Southern side of the question should not hesitate to write him at the Plaza Building in Jackson.

This is about all the bibliography I am up to. Any student who delves into this subject necessarily will resort immediately to the Periodical Index. It teems with magazine references. Offhand, I know of not more than a dozen articles that present some aspects of the traditional Southern view--this, out of _more than two thousand_ indexed articles supporting the integrationist view since 1954. Look them up: Clifford Dowdey, in _Saturday Review_ of Oct. 9, 1954; Senator Ervin, in _Look_ of April 3, 1956; Herbert Ravebel Sass, in _Atlantic_ of November 1956; Tom Waring, in _Harper’s_, January 1956; Virginius Dabney, in _Life_ of Sept. 22, 1958; William F. Buckley, Jr., in _Saturday Review_ of Nov. 11, 1961; Perry Morgan, in _Esquire_ for January, 1962; Donald R. Davidson in the _Star Weekly Magazine_ for Nov. 9, 1957. There may have been a few others. The Citizens Council has a wealth of pamphlets, booklets, and other ephemera available to the student who troubles to ask for reference material. And of course the microfilmed resources of the Southern Educational Reporting Service are invaluable.

I owe thanks to my right arm, Ann Lloyd Merriman; and to my publisher in Richmond, D. Tennant Bryan; and to the librarians of the State Law Library, the Library of Congress, and the state and city libraries in Richmond; to my congenial masters at Collier Books; to Dr. Henry E. Garrett; to John Riely, attorney, who made available to me the briefs of all parties in the School Segregation Cases; to various antagonists of the NAACP, among them Thurgood Marshall and Spotswood Robinson III. And the day this book appears, in glancing over this incomplete and sketchy note, I will think of a hundred other sources and mentors to whom I shall ever be

Gratefully theirs,
J.J.K.

July, 1962.

FOOTNOTES:

[1] Together with No. 2, _Briggs et al._ v. _Elliott et al._, on appeal from the United States District Court for the Eastern District of South Carolina, argued December 9-10, 1952, reargued December 7-8, 1953; No. 4, _Davis et al._ v. _County School Board of Prince Edward County, Virginia, et al._, on appeal from the United States District Court for the Eastern District of Virginia, argued December 10, 1952, reargued December 7-8, 1953; and No. 10, _Gebhart et al_. v. _Belton et al._, on certiorari to the Supreme Court of Delaware, argued December 11, 1952, reargued December 9, 1953.

[2] In the Kansas case, _Brown_ v. _Board of Education_, the plaintiffs are Negro children of elementary-school age residing in Topeka. They brought this action in the United States District Court for the District of Kansas to enjoin enforcement of a Kansas statute which permits, but does not require, cities of more than 15,000 population to maintain separate school facilities for Negro and white students. Kan. Gen. Stat. § 72-1724 (1949). Pursuant to that authority, the Topeka Board of Education elected to establish segregated elementary schools. Other public schools in the community, however, are operated on a nonsegregated basis. The three-judge District Court, convened under 28 U. S. C. §§ 2281 and 2284, found that segregation in public education has a detrimental effect upon Negro children, but denied relief on the ground that the Negro and white schools were substantially equal with respect to buildings, transportation, curricula, and educational qualifications of teachers. 98 F. Supp. 797. The case is here on direct appeal under 28 U. S. C. § 1253.

In the South Carolina case, _Briggs_ v. _Elliott_, the plaintiffs are Negro children of both elementary and high school age residing in Clarendon County. They brought this action in the United States District Court for the Eastern District of South Carolina to enjoin enforcement of provisions in the state constitution and statutory code which require the segregation of Negroes and whites in public schools. S. C. Const., Art. XI, § 7; S. C. Code § 5377 (1942). The three-judge District Court, convened under 28 U. S. C. §§ 2281 and 2284, denied the requested relief. The court found that the Negro schools were inferior to the white schools and ordered the defendants to begin immediately to equalize the facilities. But the court sustained the validity of the contested provisions and denied the plaintiffs admission to the white schools during the equalization program. 98 F. Supp. 529. This Court vacated the District Court’s judgment and remanded the case for the purpose of obtaining the court’s views on a report filed by the defendants concerning the progress made in the equalization program. 342 U. S. 350. On remand, the District Court found that substantial equality had been achieved except for buildings and that the defendants were proceeding to rectify this inequality as well. 103 F. Supp. 920. The case is again here on direct appeal under 28 U. S. C. § 1253.

In the Virginia case, _Davis_ v. _County School Board_, the plaintiffs are Negro children of high school age residing in Prince Edward County. They brought this action in the United States District Court for the Eastern District of Virginia to enjoin enforcement of provisions in the state constitution and statutory code which require the segregation of Negroes and whites in public schools. Va. Const., § 140; Va. Code § 22-221 (1950). The three-judge District Court, convened under 28 U. S. C. §§ 2281 and 2284, denied the requested relief. The court found the Negro school inferior in physical plant, curricula, and transportation, and ordered the defendants forthwith to provide substantially equal curricula and transportation and to “proceed with all reasonable diligence and dispatch to remove” the inequality in physical plant. But, as in the South Carolina case, the court sustained the validity of the contested provisions and denied the plaintiffs admission to the white schools during the equalization program. 103 F. Supp. 337. The case is here on direct appeal under 28 U. S. C. § 1253.

In the Delaware case, _Gebhart_ v. _Belton_, the plaintiffs are Negro children of both elementary and high school age residing in New Castle County. They brought this action in the Delaware Court of Chancery to enjoin enforcement of provisions in the state constitution and statutory code which require the segregation of Negroes and whites in public schools. Del. Const., Art. X, § 2; Del. Rev. Code § 2631 (1935). The Chancellor gave judgment for the plaintiffs and ordered their immediate admission to schools previously attended only by white children, on the ground that the Negro schools were inferior with respect to teacher training, pupil-teacher ratio, extracurricular activities, physical plant, and time and distance involved in travel. 87 A. 2d 862. The Chancellor also found that segregation itself results in an inferior education for Negro children (see note 10, _infra_,), but did not rest his decision on that ground. _Id._, at 865. The Chancellor’s decree was affirmed by the Supreme Court of Delaware, which intimated, however, that the defendants might be able to obtain a modification of the decree after equalization of the Negro and white schools had been accomplished. 91 A. 2d 137, 152. The defendants, contending only that the Delaware courts had erred in ordering the immediate admission of the Negro plaintiffs to the white schools, applied to this Court for certiorari. The writ was granted, 344 U. S. 891. The plaintiffs, who were successful below, did not submit a cross-petition.

[3] 344 U. S. 1, 141, 891.

[4] 345 U. S. 972. The Attorney General of the United States participated both Terms as _amicus curiae_.

[5] For a general study of the development of public education prior to the Amendment, see Butts and Cremin, A History of Education in American Culture (1953), Pts. I, II; Cubberley, Public Education in the United States (1934 ed.), cc. II-XII. School practices current at the time of the adoption of the Fourteenth Amendment are described in Butts and Cremin, supra, at 269-275; Cubberley, _supra_, at 288-339, 408-431; Knight, Public Education in the South (1922), cc. VIII, IX. See also H. Ex. Doc. No. 315, 41st Cong., 2d Sess. (1871). Although the demand for free public schools followed substantially the same pattern in both the North and the South, the development in the South did not begin to gain momentum until about 1850, some twenty years after that in the North. The reasons for the somewhat slower development in the South (_e.g._, the rural character of the South and the different regional attitudes toward state assistance) are well explained in Cubberley, _supra_, at 408-423. In the country as a whole, but particularly in the South, the War virtually stopped all progress in public education. _Id._, at 427-428. The low status of Negro education in all sections of the country, both before and immediately after the War, is described in Beale, A History of Freedom of Teaching in American Schools (1941), 112-132, 175-195. Compulsory school attendance laws were not generally adopted until after the ratification of the Fourteenth Amendment, and it was not until 1918 that such laws were in force in all the states. Cubberley, _supra_, at 563-565.

[6] _Slaughter-House Cases_, 16 Wall. 36, 67-72 (1873); _Strauder_ v. _West Virginia_, 100 U. S. 303, 307-308 (1880):

“It ordains that no State shall deprive any person of life, liberty, or property, without due process of law, or deny to any person within its jurisdiction the equal protection of the laws. What is this but declaring that the law in the States shall be the same for the black as for the white; that all persons, whether colored or white, shall stand equal before the laws of the States, and, in regard to the colored race, for whose protection the amendment was primarily designed, that no discrimination shall be made against them by law because of their color? The words of the amendment, it is true, are prohibitory, but they contain a necessary implication of a positive immunity, or right, most valuable to the colored race,--the right to exemption from unfriendly legislation against them distinctively as colored,--exemption from legal discriminations, implying inferiority in civil society, lessening the security of their enjoyment of the rights which others enjoy, and discriminations which are steps towards reducing them to the condition of a subject race.”

See also _Virginia_ v. _Rives_, 100 U. S. 313, 318 (1880); _Ex parte Virginia_, 100 U. S. 339, 344-345 (1880).

[7] The doctrine apparently originated in _Roberts_ v. _City of Boston_, 59 Mass. 198, 206 (1850), upholding school segregation against attack as being violative of a state constitutional guarantee of equality. Segregation in Boston public schools was eliminated in 1855. Mass. Acts 1855, c. 256. But elsewhere in the North segregation in public education has persisted in some communities until recent years. It is apparent that such segregation has long been a nationwide problem, not merely one of sectional concern.

[8] See also _Berea College_ v. _Kentucky_, 211 U. S. 45 (1908).

[9] In the _Cumming_ case, Negro taxpayers sought an injunction requiring the defendant school board to discontinue the operation of a high school for white children until the board resumed operation of a high school for Negro children. Similarly, in the _Gong Lum_ case, the plaintiff, a child of Chinese descent, contended only that state authorities had misapplied the doctrine by classifying him with Negro children and requiring him to attend a Negro school.

[10] In the Kansas case, the court below found substantial equality as to all such factors. 98 F. Supp. 797, 798. In the South Carolina case, the court below found that the defendants were proceeding “promptly and in good faith to comply with the court’s decree.” 103 F. Supp. 920, 921. In the Virginia case, the court below noted that the equalization program was already “afoot and progressing” (103 F. Supp. 337, 341); since then, we have been advised, in the Virginia Attorney General’s brief on reargument, that the program has now been completed. In the Delaware case, the court below similarly noted that the state’s equalization program was well under way. 91 A. 2d 137, 149.

[11] A similar finding was made in the Delaware case: “I conclude from the testimony that in our Delaware society, State-imposed segregation in education itself results in the Negro children, as a class, receiving educational opportunities which are substantially inferior to those available to white children otherwise similarly situated.” 87 A. 2d 862, 865.

[12] K. B. Clark, Effect of Prejudice and Discrimination on Personality Development (Midcentury White House Conference on Children and Youth, 1950); Witmer and Kotinsky, Personality in the Making (1952), c. VI; Deutscher and Chein, The Psychological Effects of Enforced Segregation: A Survey of Social Science Opinion, 26 J. Psychol. 259 (1948); Chein, What are the Psychological Effects of Segregation Under Conditions of Equal Facilities?, 3 Int. J. Opinion and Attitude Res. 229 (1949); Brameld, Educational Costs, in Discrimination and National Welfare (MacIver, ed., 1949), 44-48; Frazier, The Negro in the United States (1949), 674-681. And see generally Myrdal, An American Dilemma (1944).

[13] See _Bolling_ v. _Sharpe_, _post_, p. 497, concerning the Due Process Clause of the Fifth Amendment.

[14] “4. Assuming it is decided that segregation in public schools violates the Fourteenth Amendment:

“(_a_) would a decree necessarily follow providing that, within the limits set by normal geographic school districting, Negro children should forthwith be admitted to schools of their choice, or

“(_b_) may this Court, in the exercise of its equity powers, permit an effective gradual adjustment to be brought about from existing segregated systems to a system not based on color distinctions?

“5. On the assumption on which questions 4 (_a_) and (_b_) are based, and assuming further that this Court will exercise its equity powers to the end described in question 4 (_b_),

“(_a_) should this Court formulate detailed decrees in these cases;

“(_b_) if so, what specific issues should the decrees reach;

“(_c_) should this Court appoint a special master to hear evidence with a view to recommending specific terms for such decrees;

“(_d_) should this Court remand to the courts of first instance with directions to frame decrees in these cases, and if so what general directions should the decrees of this Court include and what procedures should the courts of first instance follow in arriving at the specific terms of more detailed decrees?”

[15] See Rule 42, Revised Rules of this Court (effective July 1, 1954).

[16] _Brown_ v. _Board of Education_, _ante_, p. 483.

[17] _Detroit Bank_ v. _United States_, 317 U. S. 329; _Currin_ v. _Wallace_, 306 U. S. 1, 13-14; _Steward Machine Co._ v. _Davis_, 301 U. S. 548, 585.

[18] _Korematsu_ v. _United States_, 323 U. S. 214, 216; _Hirabayashi_ v. _United States_, 320 U. S. 81, 100.

[19] _Gibson_ v. _Mississippi_, 162 U. S. 565, 591. Cf. _Steele_ v. _Louisville & Nashville R. Co._, 323 U. S. 192, 198-199.

[20] Cf. _Hurd_ v. _Hodge_, 334 U. S. 24.

[21] 347 U. S. 483; 347 U. S. 497.

[22] Further argument was requested on the following questions, 347 U. S. 483, 495-496, n. 13, previously propounded by the Court:

“4. Assuming it is decided that segregation in public schools violates the Fourteenth Amendment

“(_a_) would a decree necessarily follow providing that, within the limits set by normal geographic school districting, Negro children should forthwith be admitted to schools of their choice, or

“(_b_) may this Court, in the exercise of its equity powers, permit an effective gradual adjustment to be brought about from existing segregated systems to a system not based on color distinctions?

“5. On the assumption on which questions 4 (_a_) and (_b_) are based, and assuming further that this Court will exercise its equity powers to the end described in question 4(_b_),

“(_a_) should this Court formulate detailed decrees in these cases;

“(_b_) if so, what specific issues should the decrees reach;

“(_c_) should this Court appoint a special master to hear evidence with a view to recommending specific terms for such decrees;

“(_d_) should this Court remand to the courts of first instance with directions to frame decrees in these cases, and if so what general directions should the decrees of this Court include and what procedures should the courts of first instance follow in arriving at the specific terms of more detailed decrees?”

[23] The cases coming to us from Kansas, South Carolina, and Virginia were originally heard by three-judge District Courts convened under 28 U. S. C. §§ 2281 and 2284. These cases will accordingly be remanded to those three-judge courts. See _Briggs_ v. _Elliott_, 342 U. S. 350.

[24] See _Alexander_ v. _Hillman_, 296 U. S. 222, 239.

[25] See _Hecht Co._ v. _Bowles_, 321, U. S. 321, 329-330.

TRANSCRIBER’S NOTE

There is no section heading ‘VIII’ in Part I of the original text.