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The Trail Where They Cried. . . the Tulsa race riot. . . the Zoot Suit riots…Manzanar. . .Gong Lum v. Rice (LA). . . Mendez v. Westminster (CA). . .Sinajini v. Board of Education of San Juan (UT). The broader story of Brown v. Board of Education echoes in these places and names. The challenge for me these next few minutes is to distill 350 years of civil rights history into a context within which those of us without legal training may begin to understand the most important legal decision for human rights in American history.
In America, from the early 1600's to the 1860's, peoples of African descent sought the most fundamental of rights - individual freedom. Despite the 1863 Emancipation Proclamation, a bloody civil war fought largely over the issue of slavery, and the 13th Amendment to the Constitution which outlawed slavery, they remained in economic and social bondage born of and enforced by segregation. Not even the 14th Amendment, ratified in 1868 to guarantee equal protection under the laws, lifted the oppression. Nor was the 15th Amendment, ratified in 1870 to guarantee voting rights, any more successful.
Section 1 of the 14th Amendment states: All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
The amendment is concise and simple. Yet, states, counties, and municipalities ignored both the spirit and intent of the amendment, passing Jim Crow laws crafted to isolate minorities geographically, socially, and economically, virtually perpetuating enslavement.
Where does the legal story of Brown begin? In 1849, 5-year old Sarah Roberts would walk past five White elementary schools to Smith Grammar School, a segregated school in Boston, built in 1820. Smith was badly run down. Sarah's father tried to enroll her in one of the White schools, without success. He selected African American attorney Robert Morris to represent his case, Roberts v. City of Boston. Noted abolitionist Charles Sumner, who was white, was asked to join Morris when the case was argued before the Massachusetts Supreme Court. This was a unique and unusual pairing of an African American and white attorney in the matter of civil rights. Sumner cited the Massachusetts constitution, arguing that school segregation was discriminatory and harmful to all children. Despite his eloquence, the court ruled in favor of the school committee.
Similar cases occurred throughout the United States, involving American children of African, Asian, Hispanic, and Native descent. For example, in 1879, a new Kansas law allowed school boards in cities with populations of 15,000 or more to re-segregate elementary schools. So, in small Kansas towns, schools were integrated; the cities chose segregation. Between 1881 and 1949, eleven racial segregation cases came before the Kansas Supreme Court. Three originated in Topeka: Reynolds v. Board of Education (1903), Wright v. Board of Education (1929), and Graham v. Board of Education (1941).
In 1892, Homer Plessy, an African American, tested a Louisiana segregation law by riding in a train car reserved for Whites. The law stated that segregation was legal as long as the facilities maintained separately for African Americans were equal. Despite the obvious disparity in the quality of the separate facilities, he was arrested and tried before the Criminal District Court for the Parish of New Orleans. Judge John H. Ferguson ruled against Plessy's argument that the segregation law violated the 14th Amendment. Plessy appealed to the Louisiana Supreme Court, which granted his petition to take the case to the US Supreme Court. In its 1896 decision in Plessy v. Ferguson, the US Supreme Court upheld Ferguson's ruling, in effect validating segregation as the law of the land. Subsequent cases based on the discriminatory nature of unequal facilities met with little success, even with the efforts and guidance of the NAACP, established in 1910. That began to change in the 1940's and 1950's.
Briggs v. Elliot began in South Carolina on May 17, 1950 when an NAACP legal team lead by Thurgood Marshall, future Associate Justice of the US Supreme Court, filed suit in Federal District Court against the school board of Clarendon County for failing to provide equal access to public education. Segregated schools were vastly inferior and no transportation was provided for African American students. The Marshall argument attacked segregation itself and his witnesses included social psychologists who testified about the insidiouseffects of segregation on the developing minds of African American children, internalizing the ubiquitous messages of inferiority. The court dismissed the argument and its testimony, citing the Plessy decision. However, the court refused final adjudication and, in January 1952, passed it to the US Supreme Court.
In Topeka, the local chapter of the NAACP, led by McKinley Burnett, asked the school board several times to fully desegregate the schools. Lacking any constructive response, the local chapter requested the assistance of the NAACP's Legal Defense Fund. Since Topeka's school facilities and curricula were relatively equal, the legal strategy focused on the discriminatory and harmful nature of separation. When African American parents trying to enroll their children in White schools for the 1950-1951 academic year, they were refused. Attorneys Robert Carter, Elisha, John, and Charles Scott, and Charles Bledsoe filed suit on behalf of their clients and the case began on June 25, 1951 in the Federal District Court as Oliver L. Brown v. Board of Education of Topeka, Shawnee County, Kansas. Ironically, one of the White schools involved in the suit, Sumner Elementary, originally constructed for AFrican American students, was named after Charles Sumner, the staunch advocate for little Sarah Roberts in Boston in 1849. In August 1951, the court found in favor of the defendants but expressed serious doubt about the doctrine of "separate but equal." The case was appealed to the US Supreme Court.
The Virginia case grew out of a student boycott of classes in protest of the inferior conditions of segregated school facilities, including tarpaper shacks used as classrooms at Moton High School. The NAACP filed Davis v. County School Board of Prince Edward County on May 23, 1951 in the US District Court in Richmond, calling for the integration of schools. The court discounted evidence of the psychological harm of segregation and determined that no discrimination existed. Citing Plessy, the court ruled for the defendants. The NAACP appealed to the US Supreme Court.
In Belton v. Gebhart and Bulah v. Gebhart, in Delaware, the initial petition concerned equal access to transportation. The NAACP encouraged the plaintiffs to drop the initial petition and sue for full integration of the schools in October 1951. In April 1952, the Chancery Court of Delaware ruled in favor of the plaintiffs and ordered the towns of Wilmington and Hockessin to integrate their schools. The ruling was upheld on appeal at the state Supreme Court. The school boards then appealed to the US Supreme Court.
On September 11, 1950, because of the inferior conditions of the segregated schools, eleven African American teenagers attempted to enroll in the new John Philip Sousa Junior High School in Washington, DC. They were refused admission to this White school. James Nabrit, Jr. filed suit on behalf of his clients and Bolling v. Sharpe was born in 1951 before the US District Court. Stating that segregation was still constitutional, the judge dismissed the case. Nabrit appealed to the United Circuit Court of Appeals. On the suggestion of the Clerk of the US Supreme Court, the Court of Appeals agreed to allow the case to advance to the Supreme Court in 1952. There, it joined the other four cases under the name Oliver L. Brown et al v. Board of Education of Topeka, Kansas et al.
At 12:52 p.m. on May 17, 1954, in a unanimous decision, the Supreme Court rejected the 1896 Plessy ruling. "We conclude that in the field of public education the doctrine of 'separate but equal' has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment." Segregation and Jim Crow were legally dead.
Then came the deliberate and choreographed resistance by some states. In spite of the Supreme Court's order in Brown II that states desegregate with "all deliberate speed," the states continued to ignore the ruling. In 1957, President Eisenhower sent Federal troops to Arkansas to secure the integration of Central High School in Little Rock over the resistance of Governor Faubus, who then closed the school the following year. President Kennedy federalized the Alabama National Guard in 1963 to enforce the integration of the University of Alabama in confrontation with a defiant Governor Wallace. In Prince Edward County, Virginia, public schools were closed for five years to resist integration; the education of the African American children languished while White students attended private schools subsidized by the county.
Slowly, slowly, de jure segregation faded. Economic conditions did not fade, and they perpetuated de facto segregation that continues to grow, especially in our cities.
The legacy of Brown is its impact on the whole of American society and its contribution to the civil rights movement, which struggled through the violence of Birmingham and Selma and thousands of other places, and has brought us a little further on the journey to equality, compassion, and tolerance. Brown also has given immeasurably to human rights in the international community. Examples include the post-apartheid constitution of South Africa and the activities of the Law and Society Association of the United States, a movement advocating the rights of Romany peoples in Europe. Brown belongs not to the United States but to the world.
Why do we commemorate these historical events? Certainly to honor the determination and sacrifice of the courageous people who made .this case law, and the hundreds of thousands of repressed peoples to whom they gave a voice. I propose that the other side of this commemoration is to remind us how fragile the American coalition is. That we must be forever proactive in insuring that the last vestiges of Jim Crow are extinguished and do not return.
Do you know the story? If you are a person of color, you know. If your people traveled in steerage and arrived on this shore at Ellis Island, if you are a victim of the glass ceiling, if you are physically challenged, you know the subtext. If you are caught "Driving While Black," if you are an inner-city or reservation child hungering for a decent education, you know the story is unfinished. And if you are a black teenager who dared to be impudent to a White woman in 1955 Mississippi, if you are a young man in Wyoming who did not hide his sexual preference, if you are a foreign-born newcomer in the gun-sights of an unemployed immigration attorney, you have paid the ultimate tuition for the learning of what it means to be different.
What does this have to do with me, you ask? The vast majority of characters in this story are common, ordinary folk. Think about the rights you and your children enjoy and how easily a legal decision could take them away. Think about the soccer mom recently arrested and jailed for failing to wear her seatbelt. Do we know that full story? Perhaps not, but the offense was a misdemeanor. The Constitution is supposed to protect against unreasonable seizure. Are you comfortable with the Supreme Court's interpretation of the 4th Amendment in upholding that arrest? If it can happen to the soccer mom, it can happen to you or to me. Know that we are protected only so far as we understand that the Constitution is either for all of us or none of us, and that that protection extends only as far as our voices demand it.
The story is there if we will only listen...listen...
Stephen E. Adams
Superintendent
Brown v. Board of Education National Historic Site
All rights reserved. Unauthorized reproduction strictly prohibited.
Primary Reference:
Kluger, Richard. Simple Justice. Vintage Books : New York, 1977.
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