Massive Resistance to Brown and Brown II

Aftermath of the bombing of an NAACP member's home c. 1957. Courtesy of the Library of Congress and the NAACP.

Michael Klarman argues in From Jim Crow to Civil Rights (2004) that the significance of Brown v. Board of Education (1954) – and the re-argument of that case in Brown v. Board of Education II (1955) – stems from the varied reactions to the case, from the already desegregated states in the North to the “massive resistance” to desegregation in the South. Brown “radicalized southern politics” as politics showed signs of a “retrogression” that reversed many of the desegregated facets of society already in place (389-92). The decisions in Brown and Brown II made a significant impact on the South, but in a way that emboldened segregation, ensured limited advancement for blacks, and created an atmosphere that encouraged extremism and diminished moderate perspectives.

Brown II offered a “prompt and reasonable start” to desegregation (355-6). No longer could public schools be deemed “separate but equal” as originally instituted, albeit in different terms, in the 1896 case Plessy v. Ferguson. Klarman explains how the decision showed only some promise of being enforced. Though the desegregation of public schools was upheld by varying southern judges (who, feeling torn between their professional duties as justices following the Supreme Court and personal feelings against desegregation, leaned toward the former) a larger segment of society began to take on extreme views against Brown and its enforcement. The organization and shaping of this sentiment became known as massive resistance, and its origins stemmed from both genuine and carefully crafted sentiments. Brown II sought to reinforce its decision to invalidate segregation, but this outright rejection in the South during the 1950s and 1960s impeded (or at least delayed) its implementation.

The violence inherent to the resistance was prevalent and notable, but several historians point to the significance of the massive resistance as an extension of the compact theory of the Constitution (i.e. the states sustain a contract with the federal government at their will). In The Rise of Massive Resistance: Race and Politics in the South During the 1950′s (1969), Numan Bartley attributed this immediate reaction against desegregation first to the South’s “cultural lag” – an impediment that encouraged racism and other prejudices to resurface quicker relative to other northern states. The other force directing the massive resistance lies with its leading figures, namely Harry Byrd (governor and later senator of Virginia) and James Kilpatrick (editor of the Richmond News Leader, now the Richmond Times-Dispatch), along with other figures that essentially constructed the principles of massive resistance.

These figures (referred by Bartley as “neobourbons,” a term that reflected their similarity to nineteenth century bourbons who sought the end of Reconstruction) are essential to understanding the origins and evolution of massive resistance. Other sources provide specific research on the subject including Tony Badger’s series of articles on the leading document of the resistance – the “Southern Manifesto”. Badger discussed at length in “Southerners Who Refused to Sign the Southern Manifesto” (1999) the identities of moderate opinion in relation to the radicals that attempted to unite southerners against the Brown decision.

In 2004, Richard Parkinson explored the role played by James Kilpatrick and manipulative ways the press brought momentum to massive resistance (“First from the Right: Massive Resistance and the Image of Thomas Jefferson in the 1950s”). His interest in Kilpatrick is matched by James Ely, Jr. who wrote The Crisis of Conservative Virginia: The Byrd Organization and the Politics of Massive Resistance (1976) with a focus on Harry Byrd’s role in designing the move against Brown and the Supreme Court (available in Dickinson College library). This book demonstrated the unusual strategies taken by Byrd as a political leader in Virginia after Brown, as noted in a review by Francis Wilhoit (author of another noted secondary source,  The Politics of Massive Resistance [1973], which is also available in Dickinson’s library).

Byrd was the subject of a the “first full-length study” in Professor Ronald Heinemann’s Harry Byrd of Virginia (1996) (available in Dickinson’s library). Attention to Kilpatrick remains, especially after his recent death on August 15, 2010.

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With All Deliberate Speed: Brown II

In the year following Brown v. Board of Education in 1954, public schools all over the United States were required to desegregate themselves. However, many schools, especially in the South, refused to desegregate. In the first Brown case, the Supreme Court ruled that schools must integrate all races instead of having separate institutions for different colored people. The Court had declared, “Racial discrimination in public education is unconstitutional.” The aftermath of this case was, unsurprisingly, not nationally well received. The United States was then faced with the question of how to go about enforcing the desegregation of public schools.

To deal with this pressing matter, the Court unanimously ruled for Brown v. Board of Education II in 1955. Ideally, every problem school in the country would have desegregated and embraced this new system without violence or disturbance. However, thus is not the American way. The Court decision was fought against hard, especially in the Deep South. The reality of the situation was that many schools did not desegregate. The Court was torn as to how to deal with this new crisis. As Klarman mentions in his book From Jim Crow to Civil Rights, many of the justices, such as Black, Douglas and Burton, felt as though the “putting off enforcement awhile” would be in the nations best interest (Klarman 314). Klarman also insists that some of the justices thought they could reduce the resistance of whites in the South by appearing “sympathetic and accommodating” (Klarman 315). Klarman noted that it was easier for the justices to empathize with the southern whites because they were “coerced out of [segregation]” rather than the blacks “who are coerced into it” (Klarman 315).

The justices fought with the problem of when and how to desegregate public schools. The time line that they finally reached in agreement was that Southern schools would have the power to decide when they desegregate as long as it was “with all deliberate speed.” This phrase, written by Chief Justice Warren was construed as extremely ambiguous. It provided the south with ample opportunity for more time for the schools to not segregate.

In March of 1956, ninety-six congressmen signed a “manifesto,” penned by Richard Russel that “promised to use ‘all lawful means’ to maintain segregation and ‘commend those states which have declared to resist.’” The South was clearly hesitant to allow integration among their schools.

Though the first Brown v Board of Education Supreme Court case in 1954 is the much better known case, the decision the following year seems to be equal in merit. There is debate among scholars as to why the decision the Court took so long to commit to their ruling in 1955. Klarman appears to believe that the decision of Brown II in 1955 was a sort of compromise with the Southern States, almost even a victory for them. The Court took their time in enforcing the segregation of schools, thus providing the South with time to ignore its decision. The aftermath and large media response to the first Brown case immediately placed the case in Supreme Court history. However, the decision of Brown I was not really complete until the following year with Brown II. Klarman believes that Brown II decision was “misguided” (320). As proven before, Klarman seems to be one of the few historians to take a more realistic, almost even negative, approach in his writings of Brown. As proven before, Klarman seems to be one of the few historians to take a more realistic, almost even negative, approach in his writings of Brown.

Other scholars write about the impact Brown II had on the country. The also argue about the courts lengthy decision from 1954 to 1955 and the intermediary time between Brown I and Brown II. John Hope Franklin writes in his article titled, “To and from Brown v. Board of Education,” that Brown II did not segregate schools as intended by the Supreme Court. He emphasizes that the Northern states were resistant, though not as bad as the South, to the desegregation of public schools. He suggests that it was the parents in the school districts that could not accept an integrated school (13). In the article, “Brown v. Board of Education at 40: A Legal History of Equal Educational Opportunities in American Public Education” authors Charles J. Russo, J. John Harris III and Rosetta F. Sandidge argue that the Supreme Court was intentionally ambiguous in their decision of Brown II. It provided the Court with the flexibility to appeal to the nation as a whole.

There are many more secondary and primary source regarding the topic of Brown v Board of Education and the decision of 1955 by the Supreme Court. This literature provides insight into one of the most important court cases in United States history. Though Brown I is more widely known as the case that trumped Plessy v. Ferguson, it did not take into effect in the majority of America until 1955 with Brown II.

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Direct Consequences of Brown

Earl Warren (Courtesy of Wikipedia)

In From Jim Crow to Civil Rights, (Oxford, 2004) Michael Klarman explores the direct consequences that Brown v. Board of Education (1954) had on school desegregation. Klarman looks into the effects that Brown had on both the border and southern states and how effective it really was in contributing to the desegregation of schools.

Brown v. Board of Education was brought to court to challenge “the constitutionality of racial segregation in public schools.” (Klarman, 290) Brown was named after the plaintiff, Oliver L. Brown, who was a black man whose daughter, Linda, had to travel a mile away from home to get to her black school when there was a white elementary school just a few blocks a way from her house. This case was brought to the Supreme Court along with four other cases addressing the issue of school segregation. “On May 17, 1954, the decision in Brown v. Board of Education unanimously invalidated racial segregation in public schools…segregated public schools were ‘inherently unequal’ and thus violated the Equal Protection Clause of the Fourteenth Amendment.” (Klarman, 292)

The court’s decision was unanimously decided by the Warren Court, under Chief Justice Earl Warren, who wrote the majority of the opinion. The Warren Court included Stanley Reed, Felix Frankfurter, William Douglas, Robert Jackson, Harold Burton, Tom Clark and Sherman Minton. The Dickinson Library carries several books specifically about the Warren Court including The Warren Court: A Retrospective, by Bernard Schwartz (Oxford University Press, 1996), The Warren Court and the Pursuit of Justice: A Critical Issue, by Morton Horwitz (Hill and Wang, 1998), and most recently, The Warren Court and American Politics, by Scot Powe (Belknap Press of Harvard University Press, 2000).

In the beginning of chapter seven Klarman starts off by looking at the years prior to the Brown decision and reflects how the north was already starting to desegregate “in response to social and political forces emanating from World War II.” (Klarman, 344) However, it was not only just the northern states that had started to desegregate schools, but parts of western states such as New Mexico, Arizona, Kansas and Wyoming were also putting these laws into place. Border state cities soon followed this pattern willingly after the Brown decision. Klarman states that “Brown supplied the push that was necessary to induce public officials to do what they would not have undertaken voluntarily but were not strongly resistant to doing.” (Klarman, 346) However, Klarman goes on to discuss how in many rural areas of the border states, such as the Eastern Shore in Maryland, the desegregation of public schools was a much slower process and still faced a lot of resistance after Brown.

Southern states had a much more difficult time of desegregating, and desegregation did not even start to happen in most areas until at least several years after Brown. “In the five Deep South states, not one of the 1.4 million black school children attended a racially mixed school until the fall of 1960.” (Klarman, 349) The vast majority of southern schools would not desegregate schools voluntarily and, therefore, would do so only by court order. This presented a problem for blacks for it was difficult and expensive to bring a case to the Supreme Court. In the 1960s the rate of school desegregation in the south accelerated with the help of student protests, sit-ins, freedom rides and Civil Rights rallies. Klarman ends this section by stating that “the 1964 Civil Rights Act, not Brown, was plainly the proximate cause of most school desegregation in the South.” (Klarman, 363)

Klarman sites several books in chapter seven that can be found in the Dickinson Library. From Brown to Bakke: the Supreme Court and School Integration, 1954-1978, by Harvie J. Wilkinson, (Oxford University Press 1979) discusses the different Supreme Court decisions involving school integration, starting with the Brown case. Making Civil Rights law: Thurgood Marshall and the Supreme Court, 1936-1961, by Mark V. Tushnet (Oxford University Press, 1994), looks at the numerous NCAAP cases that were brought to the Supreme Court during this time period. Tushnet also offers numerous interviews and documents about Thurgood Marshall. Klarman also references to J.W. Peltason’s book Fifty-Eight Lonely Men; Southern Federal Judges and School Desegregation (University of Illinois Press, 1971) several times throughout this chapter. The University of Illinois Press book review states that this book “is unequaled in its description of the plight of federal judges who are charged with carrying out the decisions of the Supreme Court against segregation but who are under constant pressure–social, political, and personal — to speak for the white South.”

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Engel v. Vitale (1962)

Associate Justice Hugo L. Black, the opinion writer for Engel v. Vitale (Courtesy of the Library of Congress)

In From Jim Crow to Civil Rights (Oxford, 2004) Michael J. Klarman identifies Engel v. Vitale as an example of a Supreme Court decision that many Americans disagreed with, and one which proved that Americans do not necessarily use the views of the Supreme Court as the model for one’s moral conduct. “Engel v. Vitale has consistently been opposed by 60-70 percent of the American public…apparently, relatively few Americans take moral instruction on pressing policy questions from the justices.” (464)

Klarman’s chapter seven focuses on the Brown v. Board of Education case and its effects on desegregation from the 1950s through the Civil Rights Movement.  Engel v. Vitale is mentioned briefly in the chapter, but the significance of the case cannot be diminished through Klarman’s omission from the majority of his book.  The decision of Engel established precedents with the Establishment Clause (available on the Cornell Law School’s Legal Information Institute Website) in terms of religion that previous cases such as Doremus v. Board of Education could not.  Klarman doesn’t develop any new understandings of the case, but includes it in a list of cases that took place after Brown that “Americans have felt free to disagree with the Supreme Court” on. (367)

Susan Dudley Gold’s Engel v. Vitale: Prayer in the Schools provides background information behind the case, the legal proceedings, and an analysis of the mix of religion and politics in the case.  According to Gold, Engel v. Vitale stemmed out of a group of parent’s opposition to a government-written prayer. In 1958, the Hyde Park, New York school district required students to recite a short prayer that was created by the State Board of Regents, or the body that regulated New York Schools. The prayer was very short: “Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our country, Amen,” but ultimately was brought to the Supreme Court in 1962.  Steven Engel, one of the Hyde Park parents, sued William J. Vitale et. al, the representatives from the State Board of Regents, over the state sponsorship of prayers in schools. The Supreme Court ruled 6-1 in favor of Engel on June 25, 1962, citing “the state of New York’s adoption of a practice wholly inconsistent with the Establishment Clause” of the First Amendment to the Constitution. (Swisher, 181)

Engel was preceded by Doremus v. Board of Education (1952), which covered the same issue of religion in schools but was delayed when the Court held that “a taxpayer had no standing to challenge Bible reading in public schools.” (Eastland, 125) In 1963, the Court ruled again in favor of separation of religion and education in Abington School District v. Schempp. The Court ruled against Doremus and in favor of Engel and Schempp, but the rulings had little effect on the public’s opinion of the Court. Despite these rulings and Brown v. Board of Education, Klarman notes that Supreme Court cases have had relatively little effect on both the public’s opinion and the public’s willingness to disagree with the Court.

Only seven Supreme Court justices presided over the Engel case: Chief Justice Earl Warren, and Associate Justices Hugo L. Black, William J. Brennan, Jr., Tom C. Clark, William O. Douglas, John Harlan II, and Potter Stewart (All biographies are available on the American National Biography Website). Terry Eastland’s Religious Liberty in the Supreme Court (available in the Dickinson Library) is an excellent source for background of Engel, the opinions, responses, and general knowledge of other cases involving religion and the State.  Hugo L. Black delivered the opinion of the Court, William O. Douglas concurred with the opinion, and Potter Stewart dissented. In the opinion of the Court Justice Black recalled that many colonists left England for America in order to pursue religious freedom, and likened the New York Regent’s prayer to the oppression that America was supposed to lack. Justice Douglas concurred, stating “New York oversteps the bounds when it finances a religious exercise.” (Eastland, 132) In his dissent, Potter Stewart complained that “to deny the wish of these school children to join in reciting this prayer is to deny them the opportunity of sharing in the spiritual heritage of our Nation.” (Eastland, 135) Religious Liberty in the Supreme Court also includes primary source articles from The New York Times (June 27, 1962, “Prayer is Personal”), The Wall Street Journal (June 27, 1962, “In the Name of Freedom”), and The Christian Century (July 4, 1962, “Prayer Still Legal in Public Schools”).  These responses to the Engel decision are mostly negative, which reflected public opinion towards the case then and still today for some.

The Dickinson College Library didn’t have any books specific to the case, but Eastland’s compilation and Carl Brent Swisher’s Historic Decisions of the Supreme Court are solid primary and secondary source compilations that are useful in researching Engel or any other Supreme Court case involving religion.

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Chief Justice Earl Warren and Brown v. Board of Education (1954)

Earl Warren, 1948 Courtesy of the Library of Congress (LC-USZ62-92346)

In From Jim Crow to Civil Rights (Oxford, 2004) Michael Klarman describes and interprets the contextual factors that explain the 1954 Brown v. Board of Education judicial ruling and it’s influence on America’s race relations. Klarman focuses on the leadership of Supreme Court Chief Justice Earl Warren and how his influence shaped the Court’s opinion.

Brown v. Board of Education (1) 347. U.S. 483 (1954) overturned the 1896 Plessy v. Ferguson decision that declared state-sponsored segregation constitutional. In 1951, lawyers within the National Association for the Advancement of Colored People (NAACP) sponsored a lawsuit designed to force the Court’s confrontation with segregation of schools. Brown v. Board of Education was composed of five separate cases, from Kansas, Washington D.C., Delaware, South Carolina and Virginia. In the case of each suit black children were denied enrollment in the local public elementary schools white children attended on the basis of segregation laws. Chief Justice Fred Vinson’s Supreme Court heard Brown v. Board of Education in December 1952. Unable to come to a decision and standing deeply divided (4-3-2) Vinson’s court decided to have the cases reargued.

After the sudden death of Chief Justice Fred Vinson in 1953, President Eisenhower appointed Earl Warren, the governor of California, as Chief Justice of the Supreme Court. (302) Earl Warren (1891-1974), born in Los Angeles California, served in World War I and as the attorney general of California, before serving as governor and chief justice. (A full biography can be found on American National Biography) Shortly after Warren’s appointment, in December 1953, the Court heard the re-argument of Brown. In the justices’ opening conference Warren proclaimed, “separate but equal doctrine rests on basic premise that the Negro race is  inferior, ” but considering the intellect and argument of the black councilmen Thurgood Marshall “proves they are not inferior.” (302) The cases presiding justices included Tom C. Clark, Robert H. Jackson, Harold H. Burton, Sherman Minton, Felix Frankfurter, Hugo L. Black, Stanley F. Reed and William O.Douglas.  May 17, 1954 Warren publicly announced the court’s decision declaring,  “We conclude unanimously that in the field of public education the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal.” Several primary sources on Brown can be found online in the collections at the Eisenhower Presidential Library.One of the best sources on Brown, Simple Justice: The History of Brown v. Board of Education and Black America’s Struggle for Justice by Richard Kulger, was originally published in 1975. In 2004 Kulger published a well-reviewed expanded edition for Brown’s fiftieth anniversary, both editions can be found in the Dickinson College Library.

Most scholars attribute the unanimity of Brown to Warren’s personal and political skills, including Klarman who identifies Warren as a necessary factor in the court’s decision. (302) Given the influence of Warren’s Constitutional interpretation on fundamental American rights, numerous scholars have attempted to capture the personal and political life of Earl Warren. Published in the late 1960s, two of the first biographies on Earl Warren include, Leo Katcher’s Earl Warren: A Political Biography (McGraw Hill, 1967) and John Weaver’s Warren: the man, the court, the era (Gollancz, 1968). Both of these books can be found in the Kennedy Collection of Dickinson College’s Archives. In 1982, leading scholar G. Edward White published the major biography Earl Warren: A Public Life (Oxford University Press, 1982) where he examines Warren’s entire political career while considering his seemingly paradoxical character. One valuable aspect of the biography is the inclusion of an appendix listing all the decisions Warren ever wrote. A 1983 source, Super Chief: Earl Warren and His Supreme Court: A Judicial Biography (New York University Press, 1983) by Bernard Schwartz focuses and expands upon the history of the Warren Court and examines the differing backgrounds and opinions of the justices. Both of these books can be found in the Dickinson Library and on Google Books. Jim Newton, the editor of the Los Angeles Times, published the most recent and highly praised biography on Earl Warren in 2007. Justice for All: Earl Warren and the Nation He Made (Penguin, 2007), captures Warren from birth through his service as Chief Justice of the Supreme Court. The second half of the book focuses on the highly controversial cases of Warren’s career as Chief Justice such as Brown and Miranda. What is most interesting about Newton’s biography is that he explores the complexity of Earl Warren as a strict conservative who, despite fierce opposition, presided over a liberal court.

Two autobiographies have been published since Earl Warren’s death in July of 1974. (See Warren’s obituary ‘Earl Warren, 83, Who Led High Court In Time Of Vast Social Change, Is Dead’ published July 10, 1974 in The New York Times.) In the 1977 publication, The Memoirs of Earl Warren (Doubleday, 1977), Warren recounts his early political career as governor of California as well as the effects of controversial Supreme Court cases on him personally. The 2001 publication, entitled The Memoirs of Chief Justice Earl Warren (Madison Books, 2001) also describes Warrens time in public office. The Dickinson College Library and Google Books own both texts.

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Gayle v. Browder (1956) and the Montgomery Bus Boycott

Civil Rights Lawyer Fred Gray, Image Courtesy of Fred Gray, Encyclopedia of Alabama

In From Jim Crow to Civil Rights (Oxford, 2004), Michael Klarman argues the direct and indirect effects of Brown v. Board of Education (1954) and debates its impact and connection with the Montgomery bus boycott. The boycott marked the first major direct-action protest of the post Brown civil rights era and a “decisive turning point” for southern Negroes. While Gayle v. Browder (1956)invalidated bus segregation laws and effectively desegregated Montgomery buses, Klarman downplays the court decisions significance on the modern civil rights movement and highlights the actual boycott as having the lasting impact, noting that the Montgomery bus boycott “demonstrated black agency, resolve, courage, resourcefulness, and leadership” and “enlightened millions of whites about Jim Crow” (372).

The Montgomery bus boycott originally did not call for the desegregation of city buses. In March 1954, President of the Women’s Political Council, Jo Ann Robinson and other members met with Montgomery Mayor William A. Gayle requesting modest changes for fairer treatment of blacks, not integration of the bus transit system. When the changes were not made, Robinson wrote a letter to the mayor in May warning of a potential boycott. On March 2, 1955, Claudette Colvin became the first person arrested for challenging the segregation laws for buses. Colvin as well as Mary Louise Smith, Aurelia S. Browder and Susie McDonald were all arrested that year for violating segregation bus laws. All four women would serve as the plaintiffs in Gayle v. Browder (1956). It was the arrest of Rosa Parks for disorderly conduct on December 1, 1955 that set the Montgomery bus boycott in motion, mobilizing the public to finally take action. On December 5, Fred Gray defended Parks in her trial while Robinson and other black leaders called for a one day boycott of the Montgomery buses. With over 90 percent of blacks staying off the buses, local leaders pressed for further action and formed the Montgomery Improvement Association and elected Martin Luther King Jr. as its president. The MIA submitted a resolution asking for three small actions for fairer treatment: for drivers to display more courtesy toward colored riders, seating be arranged on a first-come first-serve basis, and for colored drivers to be hired for bus routes that were predominately black. None of their demands were  met and the boycott continued.

The city refused to make the concessions and adopted a “get tough” policy, believing that the boycott would not last as blacks were seen as undisciplined and unorganized. Boy-cotters were arrested while King and civil rights activist Edgar Daniel Nixon had their homes bombed. Many of these actions brought negative national publicity to Montgomery furthering the support for the case. With their demands not being met, the MIA decided to challenge the legality of bus segregation. On February 1, 1956, two days after the bombing of King’s house, Gray and Charles D. Langford filed a federal district court petition that became known as Gayle v, Browder. The case, featuring the four women, Browder, Smith, Colvin and McDonald as plaintiffs who had been arrested on city buses, challenged “the constitutionality of the laws requiring segregation on the buses in the city of Montgomery” (Gray, 69). Because the case challenged a state-statute, the case was heard by a three-judge United States District Court panel. On June 5, 1956, Judge Richard T. Rives wrote the 2-1 decision ruling that segregation on Alabama buses was unconstitutional citing Brown as precedent. The decision was appealed by Mayor Gayle and the case reached the Supreme Court where it was upheld unanimously on November 13, 1956. On December 17, 1956, Alabama tried to appeal the Gayle v. Browder decision again but their plea was rejected by the Supreme Court. Three days later it was ordered for Montgomery buses to be integrated which led to the MIA calling off the 381-day boycott.

Many of the actors involved in the boycott and case wrote books about the events as well as their own lives. Fred Gray’s Bus Ride to Justice (Montgomery, 1995) contains his first hand account of the events and is partially available on Google Books. Martin Luther King Jr.’s intimate account of the successful nonviolent protest Stride Toward Freedom: The Montgomery Story (New York, 1958) is another great source for readers. The Montgomery Bus Boycott and the Women Who Started It (Tennessee, 1987) is the account and memoir of Jo Ann Robinson. Klarman utilizes Stewart Burns’ Daybreak of Freedom: The Montgomery Bus Boycott (North Carolina, 1997) as his main source for the boycott and case.

An invaluable online resource is the Martin Luther King, Jr. Research and Education Institute. The site features an encyclopedia with various entries on the events, cases, organizations and people involved with the civil rights movement. Each entry contains references, links to relevant entries as well as primary documents related to the entry. Another helpful free online resource is the Encyclopedia of Alabama which contains numerous articles on the events and people involved.

For other references on people involved in the case and boycott, there are numerous sources available in books and online. Claudette Colvin is the subject of Phillip M. Hoose’s new book Claudette Colvin: Twice Toward Justice (New York, 2009). There is an article in the Montgomery Advertiser which explores the life of Aurelia Browder that is available online. Their site has a feature on the Montgomery bus boycott and offers other materials including video. Judge Richard T. Rives, who wrote the 2-1 decision that ruled segregation unconstitutional in the case, had his obituary printed in the New York Times on October 30, 1982. The other judge who ruled in the majority was Frank Minis Johnson Jr, who is the subject of many books including Jack Bass’ Taming the South: The Life and Times of Judge Frank M. Johnson and the South’s Fight Over Civil Rights(New York, 1993) which is considered the most complete biography and available at the Dickinson Library. Seybourn Lynne, the dissenter in the case, had his obituary published in the New York Times on September 12, 2000.

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Brown II (1955): The Task of Desegregation

In From Jim Crow to Civil Rights (New York, 2004), Michael J. Klarman states that the Brown II decision made in 1955 gave hope to those who opposed the original verdict of Brown v. Board of Education a year earlier.  Klarman writes that Brown II “was a solid victory for white southerners” and that “the Court did not really intend to foist integration on them any time soon” (318-19).

The Brown Family, Courtesy of PBS

Klarman identifies the changes within the Supreme Court itself as a catalyst for the delay in the landmark decision of Brown v. Board of Education and Brown II as it was almost a year between these two decisions, displaying the inability to find quick way to initiate desegregating procedures.  The case with young Linda Brown from Topeka, Kansas at the forefront brought an end to segregation in schools, but how the institution of that policy would come about was for Brown II to determine.  In Brown II, the justices determined that taking a stance favoring gradual desegregation and a flexible implementation plan.  This was not the positive result that supporters of the Brown v. Board of Education decision almost a year earlier were expecting as it did not institute immediate segregation and gave the supporters of segregation, mainly those school systems in the South, an opportunity to draw out the process of integration.

In many ways, Brown II was just as important if not more important than Brown v. Board of Education as it set into motion the sweeping decision of desegregation determined by Brown v. Board of Education and how it would be carried out in areas that still had segregated school systems.  While the case was certainly a blow to the movement towards equal rights and instant desegregation of schools, it is highly likely that, according to Klarman, “even an order for immediate integration would have been bitterly resisted” (320).

While there have been numerous amounts of books and articles written encompassing the entire process of the Brown v. Board of Education case, there have been no well-known works detailing solely the Brown II decision.  This is most likely because the Brown II decision is seen as an extension of the Brown v. Board of Education rather than its own separate entity.  However, the Brown II decision plays a major role in the books whose foundation concerns firstly the Brown v. Board of Education decision made in 1954.  Brown v. Board of Education: A Brief History with Documents by Waldo E. Martin focuses on the primary sources for its source of analysis concerning the cases which contrasts to books like Brown v. Board of Education: A Civil Rights Milestone and Its Troubled Legacy by James T. Patterson which provide more of a narrative-like style when detailing the events of the cases.  Both of these works also provide the necessary background such as information on the Plessy v. Ferguson case as well as examining the context surrounding the decisions and the social environment of the time.  Journal articles such as “The Impact of the Brown v. Board of Education Decision on Postsecondary Participation of African Americans” by William B. Harvey, Adia M. Harvey, and Mark King focus more on specifics as well as the lasting effects of the Brown v. Board of Education and the Brown II cases and their ability to permeate aspects of society in the modern day.

Chief Justice Earl Warren became one of the most well-known justices in American history and his era of transforming American law, especially in regards to segregation.  Several standard biographies of Warren exist, with the most well-known being Earl Warren: Justice for All by Christine Compston and Earl Warren: A Public Life by G. Edward White, which cover his entire lifetime while both having major focuses on his role in Brown v. Board of Education and as head of the Warren Commission, which investigated the assassination of President John F. Kennedy.

Chief Justice Earl Warren, Courtesy of the National Constitution Center

The other judges in the case who sought unanimity in their decisions in Brown v. Board of Education and Brown II were Hugo Black, Stanley F. Reed, Felix Frankfurter, William O. Douglas, John M. Harlan, Harold H. Burton, Tom C. Clark, and Sherman Minton.  All of these justices have had at least one biography written about their achievements not only concerning their times as Supreme Court justices but also in other aspects of their political careers.  Two of the more well-known works are Hugo Black by Roger K. Newman and Supreme Court Justice Tom C. Clark: A Lifetime of Service by Mimi Clark Gronlund.

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Brown II (1955)

Following the crucial Brown v. Board of Education Brown v. Board of Education Decisionunanimous decision of 1954 which overturned Plessy v. Ferguson, and declared that racial segregation in public schools violated the Equal Protection clause of the 14th Amendment, Northern border state cities attempted to desegregate their respective school systems without too much social resistance. However, according to Klarman, “even in those border-state cities where desgregation came quickly, the number of blacks attending racially mixed schools often remained small because of residential segregation.” (348) When it came to non-bordering Southern states, desegregation was relatively nonexistent and would not become an issue until the 1960s “as burgeoning direct-action protest made blacks more aggressive in demanding school desegregation…and federal judges grew less tolerant of delay.” (349)

One year after the original Brown v. Board of Education decision, Southern states requested exemption from the desegregation task which was brought to the Supreme Court as Brown II. Chief Justice Earl Warren delivered the decision for this case as well. Associate Justices Stanley Reed, Hugo Black, Felix Frankfurter, William Douglas, Harold Burton, Tom Clark, and Sherman Minton presided over this case as well. Although the court ultimately upheld that “racial discrimination in public education is unconstitutional, and all provisions of federal, state or local law requiring or permitting such discrimination must yield to this principle”, it also provided Southern states with a loophole. The Brown II decision not only mandated that school boards would hold the power to desegregate, but that they should carry out the desegregation process with “all deliberate speed”, an extremely ambiguous term that allowed Southern states to stall racial equality. Without an official court order, states could essentially take as little or as long a time as they deemed necessary to desgregate their school system.

Considering the gravity of these cases, there are many secondary sources that help to shed light on the then-controversial issue of racial equality. For example,  Brian Daugherity’s  With All Deliberate Speed: Implementing Brown v. Board of Education, aims to provide readers with an assessment of the struggles that came with implementing integration in public schools across the country, specifically in the South. Daugherity’s book lays out a roadmap using numerous firsthand accounts and essays. According to a book review by Christopher Schmidt from The Journal of American History, Brown II demonstrates that “in the face of massive resistance the courts were largely ineffectual and southern moderates were marginalized. [Daugherity] portray African Americans – parents, lawyers, and activists – acting on the local level as the crucial players in the desegregation struggle.” In a review by writer Mark Whitman from The Journal of Southern History believes that “the greatest strength of the volume is that the contributors focus on the unique aspects of each southern state’s struggle with a future those states collectively resisted.”

Another valuable secondary source is Silent Covenants: Brown v Board of Education and the Unfulfilled Hopes for Racial Reform, written by Derrick Bell, the first tenured African American professor at Harvard University and a veteran civil rights lawyer. Bell argues that the Brown case acts more as a symbol of changing times and less as a legal precedent. In a review by Genna Rae McNeil from The Journal of Southern History, she explains that Bell uses his “interest-convergence theory” (which basically states that during the Brown era, racial equality would not be achieved and African-American legal interests would not be satisfied until they happened to converge with white legal interests) to support Michael Klarman’s backlash thesis in From Jim Crow to Civil Rights, “which maintains that the abolition of Jim Crow was inevitable and limits the major significance of Brown to its crystallization of southern resistance to racial change that previously had been scattered.”

There are also many primary resources that help to illuminate the effects that Brown II had in the national scheme of things. For example, following the Brown II decision, 101 congressman from across the United States put together a “Southern Manifesto“, written in 1956, as a counter to the idea of public integration in general. Written originally by South Carolina Senator Strom Thurmond and finalized by Georgia Senator Richard Russell, the document goes into great detail regarding “the school cases as a clear abuse of judicial power.” This document helps us to understand the Brown v Board of Education cases from a Southern segregationist perspective.

Another primary resource that helps us to further understand the effect that the Brown II decision had on African Americans of the time is an autobiography written by Melba Beals, one of the members of the infamous “Little Rock Nine” group. Little Rock Nine represents nine African American students from Little Rock, AK who were prohibited from attending their local high school by Arkansas Governor Orval Faubus despite the Supreme Court legislation banning segregation in schools. Following an intervention by former-President Eisenhower, those students were allowed to attend their respective publuic school.  Many years later, Melba Beals wrote a book entitled Warriors Dont Cry which details the Little Rock Nine controversy and the effects that it had on her, her family, and all those involved. This book provides a valuable firsthand insight into some of the more negative effects that Brown II had on the public.

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Sweatt v. Painter (1950)

Klarman introduces Sweatt v. Painter (1950) as one of two cases “instrumental to desegregating higher education in the border states and the peripheral South” (253). The case led to the desegregation of the University of Texas, and set a precedent allowing educational facilities to be integrated.

The case began in Texas in 1946, where a man named
Herman Marion Sweatt
Courtesy of TPR
Heman Marion Sweatt, was denied admission to the University of Texas Law School,
since entrance was restricted to whites. The President of the College, Theophilus Painter, refused to change the University’s policy restricting blacks from entering. When Sweatt asked the state courts to order his admission, the university simply constructed another university so that they could utilize the Separate but Equal Clause of Plessy v Ferguson (1896). The Texas State Supreme Court agreed with this idea, and its decision, found at HouseofRussel.com allowed the state of Texas to create a separate institution. Sweatt appealed the decision, and brought the case to the Supreme Court. At the Supreme Court, he argued that the “separate but equal” facility that Texas had created was in fact inferior to the University of Texas, citing its smaller, less prestigious faculty, its restricted course offerings, and a library that offered far fewer books than the main campuses library. In a unanimous decision, the Court ruled in favor of Sweatt, agreeing that since the other schools facilities were inferior, the state of Texas had not met its “separate but equal” claim.
There is a great deal of literature and resources available for Sweatt itself, and regarding the circumstances surrounding the case. There is R. Scott Baker’s book Ambiguous legacies: The NAACP’s legal segregation in Charleston, South Carolina, 1935-1975, which provides background information about black higher education in the South. Additionally, The Crisis magazine published an article in 1951 entitled “Undergirding the Democratic Ideal” by Roy Wilkins, which spoke about education for African Americans as a hallmark of a democratic society. An article called “Racial Integration in Education” by Thurgood Marshall and John Clay Smith discusses the history of African Americans trying to receive equal education. There are also contemporary accounts of the case written by the African American newpaper, Houston Informer,(25 Articles) which has accounts of the case from March 5, 1946 to June 24, 1950. The case was also covered by four other contemporary newspapers, the Austin American, (11 Articles) the Daily Texan (1 article), the Dallas Morning News( 7 Articles), and The United States Law Week.
Chief Justice Fred Vinson wrote the decision which reversed the opinion of the trial court, which stated that the “privileges, advantages, and opportunities for the study of law substantially equivalent to those offered by the State to white students at the University of Texas”. Vinson compared the two schools and noted the “[t]he University of Texas Law School has 16 full-time and three part-time professors, 850 students, a library of 65,000 volumes, a law review, moot court facilities, scholarship funds, an Order of the Coif affiliation, many distinguished alumni, and much tradition and prestige. The separate law school for Negroes has five full-time professors, 23 students, a library of 16,500 volumes, a practice court, a legal aid association and one alumnus admitted to the Texas Bar; but it excludes from its student body members of racial groups which number 85% of the population of the State and which include most of the lawyers, witnesses, jurors, judges, and other officials with whom petitioner would deal as a member of the Texas Bar.” He was joined in his opinion by Hugo Black, Stanley F. Reed, Felix Franfurter, William O. Douglas, Robert H. Jackson, Harold H. Burton, Tom C. Clark, and Sherman Minton.
There is not a great deal of literature available for Justice Vinson. In 1969, Herman Pritchett wrote Civil Liberties and the Vinson Court. (The University of Chicago Press, 1969), which I could not find. There is also Division and Discord: The Supreme Court Under Stone and Vinson, 1941-1953 by Melvin I. Urofsky, which discusses his court cases while in the Supreme Court.
The life of Herman Sweatt is not altogether well recorded. Gary M. Lavergne’s book Before Brown details Sweatt’s attempts to get admitted to Law School, as well as other African American attempts to gain equality in education before Brown. Otherwise, he is simply part of books detailing the Civil Rights movement, such as Dwonna Naomi Goldstone‘s book about racial equality Integrating the 40 Acres, but not a key part of the book.
Likewise, Theophilius Painter is not mentioned a great deal in the pages of history. Actually, he is more remembered for his contributions to science than to medicine. James Schwartz’s In Pursuit of the gene: from Darwin to DNA speaks about Painter’s contributions to genetic science in his lifetime. The only other resources on him are all related to the trial, and there is no definitive biography on him. The best I was able to find was the University of Texas’s Biographical Note, which briefly discusses his life before providing the location to documents about his life.

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Smith v. Allwright

In From Jim Crow to Civil Rights (Oxford, 2004), Michael Klarman underlines the main reasons why the court’s decision in Smith v. Allwright (1944) changed so drastically from Grovey v. Townsend, nine years prior. “This shift, within the short span of nine years, from a unanimous decision sustaining white primaries to a near-unanimous ruling invalidating them, is unprecedented in U.S. constitutional history.” (Klarman, 200)

Chief Justice Harlan F. Stone, Courtesy of Wikipedia

Smith v. Allwright confronted the issue of all white primaries in the state of Texas. Lonnie Smith was an educated black man who had lived in Texas his entire life and had always voted for the Democratic candidate. However, in Texas and other southern states, blacks were banned from voting in the Democratic primary elections. The primary election was extremely important in Texas since it was a one-party state, and therefore, the results would determine the winner of the general election. Smith and the NAACP brought the issue to the Supreme Court “holding that the Texas Democratic Party’s racial restriction on voting in its primaries was ‘in violation of the 15th amendment.’” (Valelly, 158) The court ruled 8-1 in favor of Smith. This victory was crucial as it “laid the groundwork for the [NAACP’s Legal Defense and Education Fund (LDF)] 1954 victory over segregated education in Brown v. Board of Education.” (Zelden, 3)

Klarman examines why the Supreme Court had such a dramatic shift in their opinions in the nine years between Grovey and Smith. In chapter four, Klarman looks at the context of the United States during the 1940s and reflects why it was so significant in the outcome of Smith. The United States had entered in World War II and blacks were fighting in a segregated army against fascism. Many people saw the “hypocrisy of fighting abroad for what it is not willing to accept at home” (Klarman, 175) and blacks “complained of the ‘mock democracy’ for which they were being asked to risk their lives.” (Klarman, 175) Because of this, Klarman states, “the justices cannot have missed the contradiction between a war purportedly being fought for democratic ends and the pervasive disfranchisement of southern blacks.” (Klarman, 200) Klarman also reasoned that one of the reasons for why the court made its decision in Smith was based on popular consensus. It was not only northerners that felt this way, but “even southern whites were far less committed to preserving black disfranchisement than they were to maintaining school segregation.” (Klarman, 200)

Klarman also mentions that the Court had been rearranged almost entirely since Grovey in 1935. Justice Owen Roberts, who had been apart of both courts, was the only one to vote against the invalidating of all white primaries. Chief Justice Stone had also been apart of the Grovey court, although, unlike Roberts, he had changed his opinion between those nine years. However, “the near-unanimous result is misleading. [Robert] Jackson and [Hugo] Black initially voted with Roberts…to sustain Texas’s white primary.” (Klarman, 199) Other court members included Stanley Reed, Felix Frankfurter, Frank Murphy, William Douglas and Wiley Rutledge.

There are several books in the Dickinson Library concerning the issue of black disfranchisement and the Smith v. Allwright case. Two of the more recent books on this subject include Charles Zelden’s The Battle for the Black Ballot: Smith v. Allwright and the Deafeat of the Texas All-White Primary (University Press of Kansas, 2004) and Richard Valelly’s The Two Reconstructions: The Struggle for Black Enfranchisement (University of Chicago Press, 2004). Zelden goes into discussing Thurgood Marshall’s and the NAACP’s role in the Smith case and how it marked a significant moment in the civil rights movement. “The victory in Smith was the first in a series of legal victories in the late 1940s and early 1950s….all of which laid the groundwork for the LDF’s 1954 victory over segregated education in Brown v. Board of Education.” (Zelden, 3) In Valelly’s book, he offers a comparison of the two reconstruction movements, the first after the Civil War, and the second being the Civil Rights Movement, and the changing of race relations in the United States. Valelly believes that Smith v. Allwright marks the beginning of the second reconstruction.

Kevin McMahon offers an interesting view in his book, Reconsidering Roosevelt on Race: How the Presidency Paved the Road to Brown (University of Chicago Press, 2004), which can be found in google books. McMahon believes that “the Roosevelt administration established a common bond with the goals of legal reform groups such as the NAACP and the ACLU and at times fought hand in hand with them to legally sabotage the constitutionally protected system of southern white supremacy.” (McMahon, 7) McMahon uses Smith as a key example for his argument.

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