Segregation and the Supreme Court

"One should never forget the immense moral pressure of such a great judgment as that just announced, and its capacity to persuade men of good will who have been doubting and hesitating"

The Court approached its duty with proper care. It first heard argument in December, 1952, held the cases under advisement until the following June, and then directed the reargument conducted last December. In the meantime, for those of us who were hoping for a ringing and unanimous declaration of the end of the doctrine of separation, there were both encouraging and discouraging aspects of the situation. Decisions in two other cases, in May and June, 1953, were heartening. One involved a purportedly private political party in Texas called the Jaybird Democratic Association, which excluded all Negroes; the other concerned a contract between two white men by which one of them agreed not to sell land to a Negro. Neither of these cases, on its facts, resembled the school segregation cases, but in each the decision was such as to favor the Negro's decent position in society. The Court held that the Jaybird Party must admit Negroes to its primary, and that the land contract was unenforceable. These were difficult controversies; both could have been decided on grounds which, at least in form, had nothing to do with race relations; both were decided the way a friend of the Negro people would wish. These were straws in a favoring wind.

On the other hand, there were worries in the five school segregation cases. Would the Court perhaps find that the Negro schools were not equal to the white, and hence that it was not necessary to decide what would be the law if they were equal? Would the Court, even if it felt that the issue was squarely presented, find distinctions between university students and grade-school pupils, and refuse to override generations of established practice of segregating children in primary schools?

These worries for those of us who wished the Negro children well disappeared a little past noon on May 17, 1954. For on that day, speaking for a united Court, the Chief Justice declared in plain words that neither in the District of Columbia nor in any one of the states does it fit with our Constitution to maintain a white public school which keeps out children whose skins are darker.

The two opinions of the Court, as is right in explaining the Constitution, are written in plain words. Mr. Justice Warren had as the center of his problem in the state cases escape from the verbal symmetry of equality in separation. If, speaking for the United States, he was to forbid any state to keep white children and black children apart in equal schoolhouses, he had to find some inequality in this treatment. He and the eight brethren for whom he spoke found it in what we all know: that excluding the Negro from schools where white children go denotes inferiority of Negro, not white. If, said Chief Justice Warren, segregation hurt McLaurin, an advanced graduate student in a university, it hurts children in grade schools the more. It generates a feeling of inferiority as to their status in the community; it may affect their hearts and minds in a way unlikely ever to be undone. Separate educational facilities are inherently unequal. Finding a denial of equal protection, the Court had no need to discuss due process of law under the Fourteenth Amendment.

Philosophically, the District of Columbia case produced an even more profound opinion. Here there was no equal protection clause to rely on. The court had to decide whether segregated schools deprive the Negro of liberty without due process of law. And the Court found it so.

Liberty under law extends to the full range of conduct which the individual is free to pursue, and it cannot be restricted except for a proper governmental objective.

Segregation in public education is not reasonably related to any proper governmental objective, and thus it imposes on Negro children of the District of Columbia a burden that constitutes an arbitrary deprivation of their liberty in violation of the Due Process Clause.

What lies behind the Court's concept of "proper" government? What is proper for the many to do to the few? What is right? What is truth? What is justice? Back of the decision lay ideas of the spiritual origin of individual man, and the bright hope of the eighteenth century that somehow it would turn out that all men are created equal.

Man has never succeeded in defining justice, and this is well; any definition might exclude what he would later wish to preserve. But the Supreme Court had no trouble in deciding on what was not justice; it was not justice to exclude the Negro child from the school where the white children could go. And that judgment day was a great day. As I write, the papers are full of reports of governors calling together educational commissions to consider what shall be done; and in two or three states there are reported a few—surprisingly few—hurt and indignant utterances from public officials. This is not remarkable. For generations men have felt deeply and resentfully about this matter. People against whom any court decides are apt to be exasperated, and say things in immediate hurt which a little later they realize they do not wholly mean.

More widespread are reports of plans for the hearings in the fall, when those interested will have a chance to discuss the terms of the Court's formal decree. There is nothing very extraordinary about the Court's deferring this final crystallization of judgment. The words "Settle decree on notice" appear at the end of many opinions. A court's opinion gives general ideas about the case, discusses precedent and theory, and announces the judgment. A decree is a later, much more precise, and much less eloquent document, which tells the parties exactly what they must do. The school situations differ in each of the four states and in the District of Columbia. Even assuming a desire on the part of all concerned to put into effect the new policy at once, there would still be complicated arrangements to make. Delay and a chance for the parties to be heard about the effectuation of the judgment are not at all unreasonable.

Furthermore, it is wise. One should never forget the immense moral pressure of such a great judgment as that just announced, and its capacity to persuade men of good will who have been doubting and hesitating. No state in the Union is populated by a separate species of cruel and brutal white men, seeking by cynical devices or by sheer defiance to escape the performance of constitutional duties. One has only to travel in the present South to realize the contrary—to be convinced of the rapid increase of humanitarianism, of cultivation, of kindness, of comfort, of all the good things that go to make up a great civilization.

Announcements from thoughtful people in the southern states are sensible and heartening. As this is written, on May 19, the Commissioner of Education of Texas has said that he was sure that Texas would comply with the Supreme Court's decision; the Governor of Kansas has expressed the intention of that state to adjust its schools; the Superintendent of Instruction of St. Louis, Missouri, has done the same. Kentucky is in the same frame of mind; the State Superintendent of Instruction of Virginia has stated that there will be no defiance of the Supreme Court decision as far as he is concerned. West Virginia feels the same.

The most resentful statements to come from public officials are from South Carolina and Georgia. But the influence of time; the quiet example of the majority of southern states; the words of the many moderate people in the less moderate states; the admiration and respect felt for the President, who has urged that the District of Columbia proceed at once with desegregation; the immense moral pressure of the simple and unanimous opinion of the nine justices—all of these things will be working. There will be problems to solve, but foolish words will quiet down and a wiser day will come. This is a time to respect, and to have confidence in, the people of the South.

After all, these are not the first tense issues to adjust themselves rightly without pressure on the states concerned, other than the moral force of a judgment of the Supreme Court. For a number of years, early in this century, litigation was pending between Virginia and West Virginia over the payment of West Virginia's share of Virginia's pre-1861 debts. This, too, raised bitter memories and thoughts of defiance. The case came before the Supreme Court several times; and after one of these hearings Mr. Justice Holmes, who had himself been thrice wounded in another sort of difference between states, spoke wise words:—

… [This] case is one that calls for forbearance upon both sides. Great states have a temper superior to private litigants and it is to be hoped that enough has been decided for patriotism, the fraternity of the Union, and mutual consideration, to bring it to an end.
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