History 404: US Constitution Seminar

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.

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.

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.”

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.

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.