200407 American Renaissance

American Renaissance - 1 - July 2004

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There is not a truth existing which I fear or would wish unknown to the whole world. — Thomas Jefferson

Vol. 15 No. 7 July 2004

Brown v. Board: the Real Story

American Renaissance

We celebrate tragedy as ifit were victory.

by Jared Taylor

May 17 marked the 50thanniversary of the USSupreme Court’s famous

ruling in Brown v. Board of Edu-cation. This decision, which for-bade racial segregation in schools,is now being celebrated as a his-toric act of justice and courage. Ofthe hundreds if not thousands ofpublic officials and editorial writ-ers who have celebrated this anni-versary, practically no one has criticizedthe decision. In fact, there is much tocriticize. Brown was certainly one of themost important Supreme Court decisionsof the 20th century; it is necessary thatwe know what was wrong—dreadfullywrong—about how it was decided, andwhat it brought about.

First, the decision involved nothingless than collusion between one of thejustices and his former clerk, who washandling the US Government’s argu-ments. One side of the case therefore hadutterly improper inside knowledge aboutwhat every justice thought, and couldcraft arguments specifically to appeal tothem.

Second, one of the key expert wit-nesses for desegregation—the only onesingled out for praise in the ruling—de-liberately suppressed research resultsthat undermined his position. He cer-tainly knew about these inconvenientresults, because they were his own.

Third, because the Court could findno Constitutional justification for over-turning the doctrine of “separate butequal,” it based its ruling on then-fash-ionable sociological theories. Thesetheories were wrong.

Fourth, Brown was the first fatefulstep towards what we call “judicial ac-

tivism.” The Supreme Court set aside itsobligation to interpret the Constitution,and did what it thought was good for thecountry. It inaugurated an era of, in ef-fect, passing new laws, rather than in-terpreting old ones. Judicial orders

should never preempt law-making byelected representatives; republican gov-ernment has been badly eroded by theprocess set in motion by Brown.

Finally, integration orders wereamong the most intrusive and damagingever issued by American courts. Judgestook over the most minute school-relateddecisions as if they were one-man school

boards. Mandatory racial balancing—usually accomplished by busing—pro-voked white flight that in many cases leftschools even more segregated than be-fore. Beginning in 1991, the Court easedits requirements for mandatory busing,

but by then it had already causedincalculable dislocation and hadturned most big-city school districtsinto minority ghettos.

The final reckoning of Brown hasyet to be made, but it is a ruling tobe mourned, not celebrated.

How Brown Came About

Until Brown, the best known Su-preme Court ruling on racial segregationhad been Plessy v. Ferguson, handeddown in 1896. This case involved sepa-rate railroad coaches for black and whitetravelers, and the court ruled famouslythat segregation was constitutional solong as the races were accommodatedin a “separate but equal” manner.

Separate was not always equal, how-ever. In 1930, Alabama, Florida, Geor-gia, and Louisiana spent about one thirdas much on each segregated black pub-lic school student as on each white stu-dent. South Carolina, the most extremecase, spent only one tenth. Whites justi-fied this difference by pointing out thatlocal taxes paid for schools, and thatblacks paid far less in taxes than whites.

Spending on black schools increasedrapidly in the 1940s and 1950s, oftenbecause of NAACP lawsuits insistingthat if black schools were to be separatethe Constitution required that they beequal. Many judges agreed, and through-out the old Confederacy there was aflurry of new taxes and bond issues toraise money for black schools. By the1950s, the gap had been greatly nar-rowed all across the South, and in Vir-ginia, for example, expenditures, facili-ties, and teacher pay were essentially

From the Baltimore Afro-American,July 2, 1955.


Letters from ReadersSir — The interview with Mr. Ruiz in

the June issue (“Displaced: A WhiteAmerican Talks About Home”) washeartbreaking. The same forces that de-stroyed his hometown continue to be justas destructive elsewhere. The few re-maining working- and lower-middle-class neighborhoods in Philadelphia arebeing bombed with Section 8 tenants—single mothers with lots of kids and lotsof boyfriends are typical. The newestHUD program gives (and gives is theimportant word here) mortgages to Sec-tion 8 “buyers.” In one case a house sell-ing for $155,000 had a monthly paymentof $110. This house is in the Northeastsection of Philadelphia, a white neigh-borhood soon to become something else.It is strange that the government inter-feres in everything, but cannot do the onething it is supposed to do: protect theborders.

B. Cook, Philadelphia, Pa.

Sir — Dan Roodt’s article on theplight of the Afrikaners under black rule(May and June issues) provides a goodhistorical overview, but in my opinion,makes the typical (white) South Africanerror. It ignores the use of non-white la-bor by the Afrikaners themselves as thecritical factor in the fall of South Africa.

Dr. Roodt blames the “West” for pres-suring SA into handing over. This is non-sense. If the Afrikaners had not beenaddicted to black labor, their countrywould never have been occupied outfrom under their feet by the blacks. Ifthe Afrikaners had never used non-whitelabor, and had ensured that whites didall the manual work, the black popula-tion would never have increased to the

point where it overwhelmed white soci-ety.

An example: the first census in the oldTransvaal was conducted in 1907, andreported in the 1913 edition of theEncyclopeadia Britannica. The whitepopulation at the time was just under300,000, and the black population wasjust about 700,000, for a 1907 black/white balance of about 2.3 to one. To-day, there are upwards of 17 or 19 mil-lion blacks in that same area, and fewerthan 1.4 million whites; the racial bal-ance is between 12 to 13 to one. Thereason for the growth in the black popu-lation was not “pressure from the West”but the fact that whites used blacks aslabor, fed them, gave them medicine,etc., and their numbers increased expo-nentially. The black population explo-sion was brought on by whites and isclearly their fault.

Arthur Kemp, South Africa

Sir — Dan Roodt’s article, “AfrikanerSurvival Under Black Rule,” is a sadpreview of what is going to happen inthe US. Your earlier article on the de-cline of South African Airways (AR,March 2003), which described the fallof a once-proud airline as a result of ra-cial nepotism, is a stark warning of whathappens when racial liberalism runsamok. I suspect we’ll be seeing thingslike that as our own country becomesmore and more non-white. I’d also becurious to know how the gold and dia-mond industries are faring under blackrule. Whenever I see Nelson Mandelaor the phony Anglican bishop DesmondTutu being lionized by American liber-als and the media, I am amazed at thestupidity of our race.

George Bolton, Carlsbad, Calif.

Sir — I was moved by Dan Roodt’sarticle about the Afrikaner nation. I con-fess that I had only a vague notion ofAfrikaners as distinct from the Englishin South Africa, and have tended to thinkof South African whites as united by racemore than divided by history, language,and culture. I now have some grasp ofthe extent to which the Afrikaners aredistinct people, descended from bravepioneer stock, who have built a societylike none other on earth.

This makes the tragedy of South Af-rica all the more compelling. We are notonly seeing the displacement of whites;we are witnessing the destruction of aprecious culture that has as much rightto survive as any. Let us hope men likeDr. Roodt can help rekindle the pride andlove of people without which this belea-guered nation cannot survive.

Tony Surrey, Burkittsville, Md.

Sir — In response to the subscriptionrenewal notice I recently received, oneof the following applies:

A) My same-sex, interracial partnerand I moved to Massachusetts to gethitched.

B) The Thought Police are watchingme to accuse me of “hate crimes.”

C) With expenses going up and in-come going down, I can’t afford it anylonger, despite finding it as entertainingand valid as ever.

D) I don’t have enough time to readit and do your publication justice bysharing your insights with those seekingtruth.

The correct answer is “D.” I’m notrenewing this time, but I have the re-newal information should circumstanceschange and we’re all not 9/11ed, mak-ing it all moot.

Keep up the good work.F. Morris, Philadelphia, Pa.

Sir — Thanks for publishing SamFrancis’s review of Human Accomplish-ment by Charles Murray, in the May is-sue. Dr. Francis was brilliant in his cri-tique, as he usually is, and insightful inhis thinking. Those who are interestedin the subject might wish to look at Wil-liam Durham’s book, Journey ThroughGenius, which examines mathematicalgeniuses from the Greeks to moderntimes. All were Europeans.

Martin Treu, Bordentown, N. J.


American Renaissance is published monthly by theNew Century Foundation. NCF is governed by section501 (c) (3) of the Internal Revenue Code; contributionsto it are tax deductible.

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Continued from page 1

American RenaissanceJared Taylor, Editor

Stephen Webster, Assistant EditorIan Jobling, Web Page Editor

George McDaniel, Web Page Consultant

equal in the two systems. Whites did notwant to send their children to school withblacks, and were prepared to make con-siderable sacrifices to avoid doing so.Some within the NAACP wonderedwhether forcing the South to live up tothe requirements of “separate but equal”would only make segregation perma-nent.

Nevertheless, the Supreme Courtagreed to hear the Brown case, whichwas a direct attack on separate schoolsystems, even if they were equal. It wasa consolidation of five separate casesthat had arisen in different states, andpetitioned the Court to abolish segre-gated schools on the basis of the “equalprotection” clause of the 14th Amend-ment.

It was impossible, however, to arguethat the original intent of the 14thAmendment was to forbid segregatedschools. The same Congress that passedthe Amendment in 1866 established seg-regated schools in the District of Colum-bia, and after ratification two years later,23 of the 37 states either established seg-regated schools or continued to operatethe ones they already had. Chief JusticeFrederick Vinson was particularly both-ered by a Constitutional appeal that re-quired the Court to recast the meaningof an Amendment.

During oral arguments in the case inDecember 1952, Thurgood Marshall ofthe NAACP therefore did not make alegal argument. His case rested on whatcame to be known as the “harms and ben-efits” theory, that segregation harmsblacks and integration would benefitthem. Justice Robert Jackson, who hadbeen chief prosecutor of Nazi war crimi-nals at Nuremberg, complained that

Marshall’s case “starts and ends withsociology.” He did not support schoolsegregation but thought it would be anabuse of judicial power to abolish it bydecree. “I suppose that realistically thereason this case is here is that actioncouldn’t be obtained from Congress,” henoted.

In fact, the sociology with which

Marshall started and ended was weak.He leaned heavily on the work of Ken-neth Clark, a black researcher known fordoll studies. Clark reported that if heshowed a pair of black and white dollsto black children attending segregatedschools and asked them which doll theyliked better, a substantial number pickedthe white doll. He argued to the Courtthat this proves segregation breeds feel-ings of inferiority. He failed to mentionthat he had shown his dolls to hundreds

of blacks attending integrated schools inMassachusetts, and that even more ofthese children preferred the white doll.If his research showed anything, it wasthat integration lowers the self-image ofblacks, but he deliberately slanted hisfindings.

John W. Davis, the lawyer who arguedto retain segregated schools, pointed outthat Clark’s conclusions contradicted hisown published results on the Massachu-setts findings. Davis later told a col-league that the ruling would surely gohis way “unless the Supreme Court wantsto make the law over.”

If the Court had decided the case im-mediately after oral arguments, Brownmight have been decided the other wayor at best, with a five-to-four majoritythat would have given it little authorityin the South. It was at this point that Jus-tice Felix Frankfurter, who was desper-ate to end segregation, assumed a keyrole. Faced with a bad legal case andjustices who did not want to abuse theirpower, his strategy was to delay. He ar-gued strongly that a decision on Brownshould be put off to allow time for aninvestigation of the original intent of the14th Amendment and to let the newEisenhower administration take a posi-tion. In the meantime, without telling theother justices, he told his clerk, Alex-ander Bickel, to ransack the history ofthe Amendment in the hope of findingsomething that would justify strikingdown segregation.

In June 1953, the Court put Brownback on the docket and invited the newadministration to file a brief. Eisen-hower’s people wanted to stay out of thecontroversy entirely, but unbeknownst tothem an agent for Felix Frankfurter wasworking at a high level in the JusticeDepartment. Philip Elman had clerkedfor Frankfurter, and was in constant com-munication with his old boss aboutBrown. He told the Solicitor General thata Supreme Court invitation to commenton a case was like a command perfor-mance, and he offered to handle the case.

Elman and Frankfurter both knew thatback-channel communication waswrong. A party to a case is never per-mitted to have secret discussions with ajudge who will decide his case. In a long1987 article in the Harvard Law Review,in which he described in detail the col-lusion that went into the Brown ruling,Elman conceded that what he did “prob-ably went beyond the pale” but, headded, “I considered it a cause that tran-

He is now a hero.


scended ordinary notions about propri-ety in a litigation.” He wrote that he andFrankfurter kept an appropriate profes-sional distance on all other cases, butmade an exception for Brown. To them,ending school segregation was so impor-tant it justified unscrupulous maneuver-ing.

They talked at length over the phoneand in person, referring to the other jus-tices by code. William Douglas was Yakbecause he was from Yakima, Washing-ton. Stanley Reed was Chamer, becauseit means dolt or mule in Hebrew, andReed thought desegregation was a po-litical and not a judicial matter.

In September 1953, something hap-pened that completely changed the com-plexion of the Court: Chief JusticeFrederick Vinson, a strong opponent ofjudicial activism, suddenly died. AsElman reports in the 1987 article, Frank-furter met him soon after in high spirits.“I’m in mourning,” he said with a hugegrin. “Phil, this is the first solid piece ofevidence I’ve ever had that there reallyis a God.” Elman writes that “God takescare of drunks, little children, and theAmerican people” and showed His con-cern for America “by taking Fred Vinsonwhen He did.” The new Chief Justicewas Earl Warren, an ambitious formergovernor of California, who saw his jobnot as interpreting the Constitution butas a chance to exercise power.

In the meantime, Frankfurter’s clerk

Bickel could find nothing in the historyor intent of the 14th Amendment thatcould be used to order desegregation, soFrankfurter changed tack. He began tourge that original intent did not matter,and that the Amendment’s languageshould be reinterpreted according to theneeds of the time. He reported to Elmanthat Warren and some of the other jus-tices were sympathetic to this view, sonot surprisingly, when the Justice De-partment filed Elman’s 600-page briefin December 1953, it too argued that thelanguage of the Amendment was broadenough to be reinterpreted.

The reargument covered the sameground as before. Marshall trotted outthe bogus doll studies again, while the

Justice Department echoed Bickel’sview that the original intent of the 14thAmendment could be ignored. Frank-furter wrote long memos to the otherjustices insisting that the law must re-spond to “changes in men’s feelings forwhat is right and just.” This combina-tion of arguments overcame the scruplesof most of the justices who were reluc-tant to go beyond what they consideredto be the limits of their authority. Jack-son and Reed were the only holdouts.The former Nuremburg prosecutor re-fused to dabble in what he thought wasa political rather than a judicial matter,and Reed, the chamer, argued that judi-cial activism was the beginning of“kritarchy,” or rule by judges.

At the end of March 1954, Jacksonsuffered a serious heart attack. Warrenrushed to the hospital and got the weak-ened justice to agree to the opinion hehad drafted. Then he cornered Reed, tell-ing him he would be all alone if he didnot go along. Reed, who never agreedwith the ruling, bowed to pressure andjoined the majority.

On May 17, Warren read the decisionfrom the bench. Since there was no le-gal reasoning involved in it, he couldkeep it short enough to make the entireruling fit into a newspaper article. Themost often quoted passage is the follow-ing:

“To separate [black children] fromothers of similar age and qualificationssolely because of their race generates afeeling of inferiority as to their status inthe community that may affect theirhearts and minds in a way unlikely toever be undone. . . . We conclude that inthe field of public education the doctrineof ‘separate but equal’ has no place.Separate educational facilities are inher-ently unequal.”

Warren admitted that he was interpret-ing the Constitution differently fromevery Supreme Court that had gone be-fore:

“[W]e cannot turn the clock back to1868 when the [14th] Amendment wasadopted, or even to 1896 when Plessy v.Ferguson was written,” he argued. Thepoint to be addressed was whether “seg-regation of children in public schoolssolely on the basis of race, even thoughthe physical facilities and other ‘tangible’factors may be equal, deprives the chil-dren of the minority group of equal edu-cational opportunities.” His conclusion:“We believe it does.” As evidence, hecited Clark’s doll studies.

It should not require pointing out thatwhether segregation makes blacks feelinferior is not a Constitutional issue.Even if the evidence that segregation didhave that effect had been solid—and itwas not—it did not justify reinterpret-ing the Constitution.

Even liberals recognized that theCourt was practicing sociology and notlaw. The New York Times, which wel-comed the ruling, nevertheless gave itsMay 18 article the following sub-head-line: “A Sociological Decision: CourtFounded Its Segregation Ruling OnHearts and Minds Rather Than Laws.”The dean of the Yale Law School,Wesley Sturges, put it more bluntly. For

the justices to rule as they did, he noted,“the Court had to make the law.”

Nor was Philip Elman’s behind-the-scenes role in the matter finished. TheConstitution has been consistently inter-preted to mean that the rights it grantsare personal and require immediate re-lief. If segregation was unconstitutionalit meant black students were entitled tointegration right away. Frankfurter hadexplained to Elman that if this were whata desegregation ruling required, he couldnot be sure of getting unanimity, perhapsnot even a majority. The prospect of thechaos such a ruling would cause wouldhave pushed many justices into opposi-tion.

It was Elman, therefore, who pro-posed the very unusual solution of sepa-rating enforcement from constitutional-ity. After the famous May 17 ruling, theSupreme Court sent the case back forfurther argument on how the decisionshould be implemented. It waited nearlya year, until May 1, 1955, to let the 1954

Since there was no legalreasoning in it, the rulingwas short enough to fit in

a newspaper article.

Earl Warren: another hero to the liberals.


ruling sink in, before issuing anotherruling on how to do what the Court or-dered. It is here that we find the famouslinguistic fudge: desegregation was to beaccomplished with “all deliberatespeed.” The South was going to have toabide by the Constitution, but it coulddrag its feet. “It was entirely unprin-cipled,” Elman wrote in 1987; “it wasjust plain wrong as a matter of constitu-tional law, to suggest that someonewhose personal constitutional rights

were being violated should be deniedrelief.” “. . . I was simply counting votesin the Supreme Court,” he added. Elmanproposed a solution he concedes was“entirely unprincipled” because that waswhat it would take to get the ruling heand Frankfurter wanted.

In his article Elman also showed con-siderable contempt for Thurgood Mar-shall, who later became the first blackappointed to the Supreme Court. Hewrote that Marshall made bad, ineffec-tive arguments, but that Elman’s collu-sion with Frankfurter had so rigged theCourt in favor of desegregation, it madeno difference: “Thurgood Marshallcould have stood up there and recited‘Mary had a little lamb,’ and the resultwould have been exactly the same.”

From Desegregation to Integration

The initial impact of the Brown deci-sions was, with a few exceptions, anti-climactic. The implementation order of1955 applied only to schools that prac-ticed legal segregation, and requiredonly that they stop assigning students toschools by race. The targets were there-fore only Southern schools, where therewas little change, since most studentsstayed where they were. A few ambitiousblack parents enrolled their children inwhite schools, but no whites switchedto black schools. There was dramaticresistance in 1957 to the arrival of evensmall numbers of blacks at Central HighSchool in Little Rock, Arkansas, but

desegregation—the end of forcible sepa-ration of students by race—passed eas-ily enough. It was the shift from deseg-regation to integration—the obligatorymixing of students to achieve “racialbalance”—that convulsed the country.

In Brown, the Supreme Court en-dorsed the view that it was legally en-forced, de jure segregation that damagedthe minds of blacks; the justices saidnothing about the de facto school segre-gation that reflects residential segrega-

tion. However, as the 1960swore on, and summers werepunctuated by riots in NewYork, Rochester, Watts, andNewark, official thinkingbegan to change. In 1967,the US Commission onCivil Rights issued a reportcalled Racial Isolation inthe Public Schools, inwhich it declared flatly that

voluntary segregation was justas harmful as legally enforced segrega-tion.

By now, almost all sociologists em-braced the harms and benefits theory ofdesegregation, and endorsed the com-mission’s report rather than a much morethoroughgoing one that had appeared theyear before. This was the now-famousDepartment of Health Education andWelfare study known as the Colemanreport, officially titled Equality of Edu-cational Opportunity. Sociologist JamesColeman and his colleagues had fully ex-pected to find that poorblack academic perfor-mance was caused by inad-equate school funding, andthat integration broughtblack achievement up to thelevel of whites. They weresurprised to learn that al-though there were regionaldifferences—the Northspent more money onschools than the South—within the regions schoolauthorities were devotingmuch the same effort to blacks as whites.

Another surprising finding was thatthe amount of money spent on schoolsdid not have much effect on student per-formance, and blacks who attended pre-dominantly white schools did onlyslightly better than those who attendedall-black schools. (Coleman later con-cluded that this small difference was notdue to integration. The first blacks whoattended white schools voluntarily were

smart, ambitious blacks who would havedone well in all-black schools.) Thesefindings ran so contrary to ’60s-erathinking that Coleman and his co-authorsburied its conclusions, and the reportbecame well-known only in retrospect.

In 1968, the Court adopted the morefashionable thinking of the Civil RightsCommission. In Green v. New KentCounty, it ruled that race-neutral schoolpolicies were not good enough. At leastfor schools that had practiced de juresegregation, the “vestiges of segrega-tion” had to be eliminated by race-con-scious remedies and forcible integration.One likes to imagine the deliberationsof our highest court conducted in Olym-pian calm, undistracted by mundaneoutside events. However, it may not bea coincidence that Martin Luther King,Jr. was assassinated the day after oralarguments in Green, and the Court de-liberated during the worst race riots thecountry had ever seen.

Still, every court order so far had beendirected to schools in the once-segre-gated South. The rest of the countrycould look on in smug superiority asSouthern whites battled busing, set upprivate schools, fled to the suburbs and,in some cases, even closed down publicschools rather than submit to “racial bal-ancing.” At least in the South, whitesclearly did not like forced race-mixing,and would go to great lengths to avoidit. To the elites of the time, this was pre-cisely the kind of prejudice busing was

designed to cure.It is easy to lose sight of just how radi-

cal a change the courts required whenthey shifted from desegregation to forc-ible integration. A movie theater, forexample, is considered desegregated ifpatrons of all races can attend. Depend-ing on location, some theaters may havepatrons of mostly one race or another,but no one would think of controllingthe flow of customers in order to achieve

Segregated black schools in Virginia in the early 1960s . . .

. . . more money would not make much difference.


“racial balance.” This, however, was theeffect of the new Court rulings. It wasas if blacks and whites had to check witha central authority whenever they wantedto see a movie, and were directed only

to theaters across town where they weresure to be a racial minority. Imagine theresistance to rules of that kind appliedto restaurants, libraries, sports events,etc. It is not surprising that Southernersresisted busing.

The respite for the North was short-lived. In its 1971 ruling in Swann v.Charlotte-Mecklenburg Board of Edu-cation the Court decided that if forcibleintegration was necessary to correct thedamage racial separation caused toSouthern blacks, it was equally neces-sary in the North, where residential andschool segregation were often almost aspronounced. The Court made it clear thatintegration was to apply to every aspectof a school, including teachers, staff,extracurricular activities, attendanceboundaries for schools and new con-struction. The judges chose schools asthe institutions that would henceforthmake up for the effects of voluntary resi-dential segregation, and breed a newgeneration that would ignore race. Soonparents everywhere were faced with theprospect of putting their children onbuses for lengthy rides across town soblacks could attend white schools andvice versa. Whites in the North set aboutwith a will to achieve racial balance butfound that, if anything, they dislikedbusing even more than Southerners did.

Wilmington, Delaware, made a par-ticularly ambitious effort. Courts con-solidated all city and suburban schooldistricts—so that whites could not es-cape to nearby white school districts—and ordered every school integrated.

This was to be done by racial mixing inneighborhoods if possible, and otherwiseby sending whites to the inner city andinner-city blacks to the suburbs.

Wilmington worked very hard to pre-pare for what ev-eryone knewwould be aw r e n c h i n gchange. Forteachers, the daysof the three Rswere over: Theywould have tomake childrenfeel important,and teach themhow to cooperate.White teachershad to learn “em-pathetic listen-ing,” “values cla-

rification,” and“consultation skills,” so they couldhandle black children. Altogether, teach-ers got a very confusing message: Theclassroom would integrate black chil-dren into the American mainstream, butit must not transmit oppressive, middle-class values.

Like other school districts, Wilming-ton learned that any racial balancing plancauses white flight, but some plans causemore than others. Shipping white chil-dren out of their neighbor-hoods to black schools wasthe worst. About half thewhite parents did not evenwait to see what it was go-ing to be like; their childrendisappeared to the far sub-urbs and into privateschools, and never set footin a black school. Most ofthe rest abandoned the ex-periment soon thereafter.

Blacks were less unwill-ing to come to whiteschools, but this did not leadto racial mixing. As one Wilmington re-porter noted, “despite the massive effortto bring the races together, students andeven teachers segregated themselves atlunch, in the hallways, and in the class-rooms if they were given the opportu-nity.” Administrators also discovered“the tipping point.” A few blacks did notchange the character of a school, but astheir numbers increased so did racialtensions. “It was almost as if there wassomething magic—or hellish—when theblack enrollment reached 40 percent,”

recalled Jeanette McDonald, who wasdean of girls at P.S. du Pont High School.“The black attitudes changed then, andthe whites had reason to be frightened.”Blacks would begin to extort protectionmoney from whites, graffiti would ap-pear, windows would be smashed, lock-ers were looted, and refuse would accu-mulate. An all-white school would rap-idly begin to turn black. Once most ofthe whites were gone, those who re-mained adapted to black dominance.

The statistics tell a dramatic story:When large-scale busing began, only onefourth of Wilmington public school stu-dents were black. By 1975, they weremore than 90 percent black. Furiouswhites were hardly mollified when Fed-eral Judge Murray Schwartz, one of thearchitects of the busing plan, transferredhis own children to private school.

Busing in Boston was perhaps moretraumatic and disruptive than anywhereelse. In 1967, the public schools were73 percent white. The average black stu-dent, however, attended a school thatwas only 32 percent white, which meansschools were substantially segregated.This reflected the fact that most blackswere clustered in Roxbury, in the south-ern part of town. Court-ordered busingcame in 1974, but the mere rumor of itwas enough to send whites to the sub-urbs. By 1973, white enrollment had

dropped to 57 percent, and the averageblack attended a school that was only21 percent white. Immediately after bus-ing, which met more resistance and vio-lence from angry whites than anywhereelse in the country, the exposure towhites increased somewhat, but quicklydropped because so many whites fled.By 2002, the district was only 15 per-cent white, and the average black at-tended a school that was 11 percentwhite, a figure far lower than the 32 per-cent from pre-integration days (please

Protest against busing in Boston.

What it took to do it.


see the figure on this page for a graphicrepresentation of these changes).

The same drama followed forced in-tegration in many big-city school dis-tricts. In Washington, DC’s publicschools, for example, white enrollmentwas 48 percent in 1951. Ambitious fed-eral judges ordered racial balancing evenbefore the Supreme Court’s Green deci-sion in 1968, so the city learned aboutintegration early. Newly-arrived blacksat Theodore Roosevelt High Schoolmade so many obscene comments to thegirl cheerleaders the school switched toboys. Several principals decided not tohave dances or other social events.Whites abandoned the public schools,and by 1974 white enrollment was downto 3.3 percent. Washington was the firstmajor urban school district from whichwhites essentially disappeared.

A district that used to show solid per-formance sank to the bottom of theleague. In 1976, one high school vale-dictorian scored only 320 on the verbaland 280 on the math SAT. These scoresput the student in the 16th and 2nd per-centiles for college-bound seniors. Onthe 25th anniversary of Brown, JamesNabrit, a lawyer who had argued one ofthe first successful desegregation casesin the District, complained that despitehuge, federally-funded budgets, theWashington schools had “drowned thecourtroom victory in a sea of failure.”

This pattern was repeated across thecountry, if not always so dramatically.White enrollment in Chicago (Cook

County) public schools was 65.4 percentin heavily segregated schools in 1969.By 1990, after mandatory racial balanc-ing, the figure was 23.5 percent, and by2000 it was 13.5 percent. The decline inNew York City’s white enrollment dur-ing the same period was from 38.7 per-cent to 19.3 to 15.3 percent. In 1968,nearly 80 percent of the public schoolstudents in San Diego were white. By2000, only 26.1 percent were white. Inall such cases, especially in California,there would have been a drop in whiteenrollment as a percentage of the totalsimply because of the arrival of largenumbers of immigrant children, but theoverwhelming bulk of the decrease is

due to white flight.At the same time, racial balance be-

gan to consume a huge proportion oflocal education budgets. Districts thatundertook full-scale integration cam-paigns soon found them swallowing upa fifth or more of the total budget.

Integration did succeed in increasingthe amount of racial contact betweenblack and white students, most obviouslyin the South, where legal segregation hadkept the races entirely apart. However,initial gains quickly eroded as whites dis-appeared. In 1968, before court-orderedbusing, the average black in a big-citydistrict attended schools that were, onaverage, 43 percent white. Busingpushed that figure up to 54 percent in1972, but by 1989 white flight hadbrought the figure down to 47 percent,just 4 points higher than in 1968.

The disappearance of whites causedso much dislocation in so many schooldistricts that the Supreme Court finallybegan to notice. In a series of decisionsbetween 1991 and 1993, the Court re-versed itself, and ruled that schoolsshould not be required to compensate forresidential segregation. By the mid-1990s there were still “magnet schools”with desirable curricula deliberately putin black areas in the hope of wooingwhites into integrated classes, but forc-

ible mixing had largely come to an end.White enrollment leveled off in mostschool districts, once children could at-tend neighborhood schools that reflectedlocal housing patterns.

Schools are therefore moving towardsincreased self-segregation. One measureof this trend is the percentage of non-white children who go to “racially iso-lated” schools, in which fewer than tenpercent of the students are white. Be-tween 1991 and 2001 that number in-creased in at least 36 of the 50 states.Thirty-five percent of black, Hispanic,Asian, and American Indian students arenow “racially isolated.”

During the same period, as integra-tion requirements eased, nearly 6,000public schools saw dramatic racial shifts,with 414 going from mostly minority tomostly white, while 5,506 shifted formmostly white to mostly minority. Thismeans that within a 10-year period, oneout of every 11 public schools (of themore than 67,000 in the whole country)changed markedly in racial character,generally coming in line with segregatedhousing patterns.

It should be noted that a school maybe integrated but its students are not.Blacks and Hispanics often cluster in theremedial classes, with whites and Asiansin the honors courses. Even those stu-

When it was their turn,whites in the North dis-liked busing even morethan Southerners did.


dents who attend the same classes rarelyfraternize across racial lines during lunchor recess. Self-segregation begins earlyand becomes more rigid as children getolder. In high school, the only consis-tent exceptions seem to be among ath-letes, who may have real interracialfriendships among teammates.

For the major big-city school districts,the end of busing came too late. Mostwhites now think of the public schoolsin places like Chicago, New York orWashington, DC as almost foreign terri-tory. Even the neighborhood school isnot a realistic option for their children.Whites may live in these cities when theyare single or childless, but move to thesuburbs for the schools. Previous gen-erations of whites made big cities theirpermanent homes; among most whitestoday this is not an option for any butthe wealthy, who can afford elite privateschools, and the poor, who have nochoice.

Few people mourn the end of busing.Whites rarely supported it, with about65 to 70 percent of parents prepared totell a pollster they didn’t want it. A sub-stantial minority of blacks also opposedit: generally about 40 percent. In Chi-cago, the longer blacks were bused theless they liked it, with opposition risingfrom 48 percent in 1986 to 60 percentin 1990. At first, most blacks believedin the “harm and benefits” theory, but asthe benefits failed to materialize theybegan to object to sending their childrenfar from home. There has also been aresurgence of black pride and accompa-nying scorn for the idea that blacks musthave white schoolmates in order to learn.

Even George W. Bush’s black Secre-tary of Education, Rod Paige, has shiftedhis emphasis away from integration.“Our goal is to make the schools betterirregardless of the demographic makeupof the school,” he explains.

The Final Reckoning

Scholars have now had decades ofschool integration to study, and the re-sults flatly contradict the sociologicalassumptions behind Brown. It is inter-esting to speculate how the justiceswould have ruled in 1954 or in the casesthat imposed busing if they had knownwhat we know now. In 1967, FederalJudge J. Skelly Wright reflected the pre-vailing view when he wrote: “Raciallyand socially homogeneous schools dam-age the minds and spirit of all children

who attend them—the Negro, the white,the poor and the affluent . . . .” He waswrong. Study after study has shown thatsegregation, whether de facto or de jure,does not lower black self-esteem. Blackchildren consistently outscore white chil-dren on all standard tests of self image.(Such tests consist of questions like

“Could you be anything you like whenyou grow up?” or “Do people pay atten-tion when you talk because you havegood ideas?” Scores on these tests gen-erally match the observations of peoplewho know the test-takers.) What is more,just as Clark’s doll tests suggested 50years ago, integration appears to lowerblack self-esteem, not raise it. The mostcommonly-given explanation is that itbrings them face to face with a racial gapin academic achievement that refuses togo away.

Here again, the findings are consis-tent: The average black 12th grader readsand does math at the level of the aver-age white 8th grader. This has beentrue—with slight, up-and-down varia-tions—for 40 years. What is more, it istrue whether black students have no, few,or many white classmates. Advocates ofthe “harm and benefits” theory have des-perately resisted these findings, and jour-nalists have hesitated to publicize them.However, as Abigail and StephanThernstrom make clear in their recentbook No Excuses, many different ap-proaches in many different school sys-tems have failed to narrow the gap. Theycall this persistent difference in achieve-ment “a national crisis.”

Nor does integration necessarily im-prove race relations. Results are not con-sistent, but increases in racial hostilityare just as likely as decreases. A morefine-grained analysis shows that integra-tion causes fewest problems at theyoungest grades, but as children getolder they become more conscious of

race and increasingly socialize withpeople like themselves. The racial gapin academic performance—although itstarts in pre-school—is not as strikingin the lower grades, and is less a barrierto friendship. Likewise, when blacksstart enrolling in formerly-white schools,race relations are best if the number ofblacks is kept at 15 to 25 percent. Re-search has confirmed what teachers inWilmington discovered after court-or-dered busing: 40 percent is the point atwhich things often go seriously wrong.

Another consistent and related find-ing is that discipline problems increaseas the number of black or Hispanic stu-dents increases (an influx of Asians doesnot have this effect). Theft, violence, andinsubordination of all kinds go up as theracial balance changes.

The “harm and benefits” theory waswrong. Integration does not damageblack children, and the only discerniblebenefit of integration appears to be themoral satisfaction it provides its archi-tects. The sociological basis for Brownwas therefore unsound.

It is also clear that white parents werejustified in opposing mandatory race-mixing. If the average black 12th graderperforms at the level of the average white

In science, the average black is still only at the 10th percentile for whites.


8th grader, the parents of the averagewhite 12th grader are right to think inte-gration will lower standards and divertresources to remediation. They are alsoright to suspect it is likely to bring vio-lence and disorder.

White flight is invariably dismissedas “racism.” However, the decline ofwhite school enrollment reflected ago-nizing decisions unelected judges forcedon millions of decent Americans. Do wekeep our children in public school de-spite falling standards? If we move tothe suburbs will we have to sell our houseat a loss? If we stay, will we both haveto work so we can afford private school?There have probably never been anyother American court decisions withsuch a direct and unpleasant impact onthe lives of so many people. It is doctri-naire to the point of callousness to dis-regard the sufferings of “racists” whorejected a social experiment in whichthey wanted no part, and did what theythought best for their children.

Brown and its sequels are some of thestrongest proof of why judicial activismis so dangerous. The Constitution is si-lent on the question of segregatedschools. Some states had them and oth-ers did not; it was a matter rightly leftup to the deliberations of the people’selected representatives. The SupremeCourt forced a mute Constitution tospeak, and in so doing made it speakgibberish.

From ratification until 1954, the Con-stitution permitted (though did not re-quire) segregated schools. In 1954 itsuddenly forbade legal segregation with-out requiring deliberate racial balancing.In 1968 it suddenly required race-con-

scious balancing, and in 1991 it decidednot to require it after all. These changeswere not the result of Amendments; theyreflect nothing more than judicial deci-sion-making so powerful and capriciousthat some have described it as tyranny.As Chief Justice Charles Evans Hughesonce noted, “We are under a Constitu-tion, but the Constitution is what thejudges say it is.”

Brown and what followed underlinehow different court rulings are from leg-

islation. Legislation is a tedious, time-consuming process, that requires theagreement of many people. It involvestrade-offs and compromises, drafting,redrafting, and public scrutiny. Manycourt rulings are taken on the authorityof only one judge, and a Supreme Courtdecision requires just five. Courts aretherefore far more likely than legislaturesto veer off into treacherous, unchartedwaters. Obligatory race-balancing wasa colossal, expensive mistake that nostate or national legislature would havemade. Only the courts can completelyignore the will of the people, and forceupon them policies their representativeswould never enact.

As the Civil Rights Act of 1964 dem-onstrated, legal segregation was prob-ably doomed. Sooner or later, legisla-tures would have desegregated schoolswithout indulging in the fantasy thatschools could remold Americans into

race-unconsciousness. The countrywould have escaped the trauma of bus-ing, and urban school districts wouldprobably not now be wastelands.

Today, even some of those whocheered the loudest for Brown have sec-ond thoughts. Derrick Bell is a blacklawyer and former Harvard Law Schoolprofessor. During the 1960s, he workedfor the NAACP, trying to short circuitthe legislative process, arguing dozensof school cases before dozens of judges.By 1976, he had concluded that integra-tion was a false goal and that blacksshould have instead petitioned for the“equal” in the “separate but equal,” es-tablished in 1896 in Plessy v. Ferguson.“Civil rights lawyers were misguided inrequiring racial balance of each school’sstudent population as a measure of com-pliance and the guarantee of effectiveschooling,” he wrote. “In short, while therhetoric of integration promised much,court orders to ensure that black young-sters received the education they neededto progress would have achieved muchmore.”

This year, the 50th anniversary ofBrown, Prof. Bell put the case even morebluntly. “From the standpoint of educa-tion,” he says, “we would have beenbetter served had the court in Brown re-jected the petitioners’ arguments to over-rule Plessy v. Ferguson.” Practically nowhites are prepared to say what Prof.Bell is willing to say: The Supreme Courtmade a mistake in 1954. This 50th anni-versary should not be a time for celebra-tion but for reflection on the dangers ofunbridled judicial power and the persis-tent reality of race.

Today even some of theblacks who fought hard-est for integration have

second thoughts about it.

Brown and the ConstitutionThe Warren Court rewrotea century of Constitution-al law.

by Joel T. LeFevre

The Supreme Court’s decision inBrown v. Board of Education senta shockwave through much of the

legal community. Scholars noted seriousConstitutional problems with the ruling,and significant departures from prin-ciples of jurisprudence. More than 80congressmen and senators signed the

“Southern Manifesto,” charging that thejustices “undertook to exercise naked ju-dicial power and substituted their per-sonal political and social ideas for theestablished law of the land.” Severalstates in the South passed resolutions ofinterposition, denouncing, in the wordsof Virginia, “the deliberate, palpable, anddangerous exercise of powers notgranted [to the federal government] . . . .”

Fifty years later, all this is forgotten.Very little is said about these legal andConstitutional issues, or about the pre-cedent set in 1954, but the Constitutionalhistory leading up to the ruling makes

clear how thoroughly aberrant theCourt’s behavior was in Brown.

After the War Between the States,Congress had to determine the legal sta-tus of millions of newly-freed slaves.The Civil Rights Act of 1866 did notgrant full racial equality, but it carefullydefined rights that could not be curtailedon the basis of race:

“The inhabitants of every race andcolor, . . . shall have the same right tomake and enforce contracts, to sue, beparties, and give evidence, to inherit,purchase, lease, sell, hold, and conveyreal and personal property, and to full

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and equal benefit of all laws and pro-ceedings for the security of person andproperty, and shall be subject to likepunishment, pains, and penalties . . . .”Furthermore, there was to be “no dis-crimination in civil rights or im-munities . . . on account ofrace, color, or previous conditionof servitude.”

This was before the term“civil rights” was corrupted tomean special privileges for non-whites. They were basic rights ofwhich no man could be deprived,but they were limited, specifiedrights. Senator Edgar Cowan ofPennsylvania questioned thebill’s effect on school segrega-tion. To this and other concerns,the bill’s patron, Senator LymanTrumbull, said it would havenone, noting that the bill did notgrant the right to vote, nor did itmake all citizens eligible for ser-vice on juries. “This bill is ap-plicable exclusively to civilrights. . . .” he explained. “Thatis all there is to it.” CongressmanJames F. Wilson of Iowa, chair-man of the House JudiciaryCommittee, explained further:

“What do these terms mean?Do they mean that in all thingscivil, social, political, all citizens,without distinction of race orcolor, shall be equal? By nomeans can they be so construed.. . . Nor do they mean that . . .their children shall attend thesame schools. These are not civilrights or immunities.”

Some worried about the effectthe bill would have on state anti-miscegenation laws, but eachtime the issue came up, the pro-ponents of the bill insisted itcould not interfere with suchlaws, so long as there were nodifferences in penalties for whites orblacks guilty of race-mixing.

The 14th Amendment

The Civil Rights Act became law onApril 9, 1866, over President AndrewJohnson’s veto. During the debates, theJoint Committee on Reconstructionheaded by Sen. Thaddeus Stevens wrotea draft of what would become the 14thAmendment. Its purpose was to enshrinethe provisions of the Civil Rights Act of1866 in the Constitution, thereby plac-

ing them beyond the reach of a transientmajority. Sen. Stevens was worried that“the first time that the South with theircopperhead allies obtain the commandof Congress it [the Civil Rights Act] will

be repealed.” An amendment would alsobind the states for, as Sen. Stevens noted,“the Constitution limits only the actionof Congress, and is not a limitation onthe States. This amendment supplies thatdefect.” Congress passed the amendmenton June 13 and sent it to the states forratification.

In what became a common formula-tion, the 14th Amendment provided forhow its provisions would be imple-mented: “The Congress shall have powerto enforce, by appropriate legislation, theprovisions of this article.” However, as

noted on page three of this issue, the verysame Congress that voted the Amend-ment segregated the schools in the Dis-trict of Columbia, which was the one ju-risdiction under its direct control.

This fact should be all that isnecessary to establish the intentof the 14th Amendment with re-gard to school segregation. Aslegal scholar Arthur J. Schweppenoted in 1961, “. . . it is utterlyunthinkable historically that theframers of the 14th Amendmentintended white and coloredschools to be integrated, and thatthe identical Congress and sub-sequent Congresses completelymisinterpreted that intent bypassing unconstitutional legisla-tion for almost a hundred years.”

As also noted on page three,many of the states that ratifiedthe amendment either estab-lished segregated schools or con-tinued operating the ones they al-ready had. Some states in theNorth had already done awaywith segregation, never practicedit, or ended it on their own. Insome, the black population wasso small segregation would havebeen impractical. According tothe 1870 census, there werefewer than 2,200 blacks in Wis-consin, 1,700 in Maine, 1,000 inVermont, 800 in Minnesota andNebraska, and only 346 in Or-egon. No state that ended segre-gation, whether by legislation orby court decision, appealed tothe 14th Amendment as an au-thority in doing so.

Segregation and the Courts

The Supreme Court acknowl-edged in Brown that “The doc-trine [of separate but equal

schools] apparently originated in Rob-erts v. City of Boston . . . .” This 1849case—which predates Plessy v. Fer-guson by almost 50 years—was decidedin Massachusetts, a leading abolitioniststate, and upheld segregation despite astate constitution that was much moreexplicit about equality than the US Con-stitution.

Massachusetts was the only state toenter the Union before 1835 with a con-stitution including a “human equality”clause. While other states generally em-braced George Mason’s concept of

This is an anti-Southern representation of the can-ing of Charles Sumner by Congressman PrestonBrooks of South Carolina. On May 19, 1856,

Sumner gave an incendiary anti-slavery speech that in-sulted the state of South Carolina and one of its senators,Andrew Butler. If “the whole history of South Carolina[were] blotted out of existence,” he claimed, civilizationwould lose “surely less than it has already gained by theexample of Kansas.” Of Andrew Butler, he said, “the Sena-tor touches nothing which he does not disfigure with er-ror, sometimes of principle, sometimes of fact. He cannotope’ his mouth, but out there flies a blunder.” This speechwent so far beyond the bounds of Senate decency thatDemocratic leader Stephen Douglas later muttered, “Thatdamn fool will get himself killed by some other damnfool.”

Senator Butler’s cousin, Preston Brooks, was a con-gressman from South Carolina. He thought Sumner’sspeech was so degrading the senator did not even deservea challenge to a duel. On May 22, he found Sumner at hisdesk in the Senate and thrashed him. It took Sumner threeyears to recover and return to Washington. Brooks wasfined $300, but Southern colleagues blocked a move toexpel him from Congress, and Brooks became a hero inthe South.

The Caning of Charles Sumner

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“equality of freedom and indepen-dence,” Massachusetts’s constitutiondeclared flatly that “all men are born freeand equal.” The state Supreme Court wastherefore construing a much broaderequality provision than mere “equal pro-tection,” and abolitionist CharlesSumner represented a black plaintiff whoclaimed that racially separate schoolsviolated the equality clause. He ad-vanced an argument that later appearedin Brown, that segregation “tends to cre-ate a feeling of degradation in theblacks.”

The Massachusetts Supreme Courtemphasized the need to base its decisionon law, not on subjective feelings of deg-radation, and upheld the power of localboards to maintain segregated schools.However, Massachusetts desegregatedits schools by legislation just six yearslater in 1855. Since the Constitution didnot limit the states’ powers to regulatetheir schools, they had exclusive powerto segregate or integrate. Congress neverclaimed that the 14th Amendment tookaway that power, and the states that rati-fied it never gave it up.

Several cases eventually came beforethe US Supreme Court to test the mean-ing and extent of the 14th Amendment.The best known was Plessy v. Ferguson(1896), and many regard it as the casein which the Court first embraced “sepa-rate but equal.” While it was the first timethat the Court as a whole addressed thequestion directly, the decision was en-tirely consistent with the general ap-proach the Court had taken in the yearsleading up to it. In the SlaughterhouseCases (1872), for example, the Courtinterpreted the 14th Amendment in thelimited sense in which it was intended:

“Was it the purpose of the 14thAmendment . . . to transfer the securityand protection of all the civil rightswhich we have mentioned, from theStates to the Federal government? And .. . was it intended to bring within thepower of Congress the entire domain ofcivil rights heretofore belonging exclu-sively to the States? . . . We are con-vinced that no such results were intendedby the Congress which proposed theseamendments, nor by the legislatures ofthe States which ratified them.”

In 1875, Congress passed a compre-hensive Civil Rights Act that attemptedto end segregation in “inns, public con-veyances on land or water, theatres, andother places of like amusement.” TheSupreme Court struck down these pro-

visions as beyond the scope of Congres-sional power under the 14th Amend-ment. In what became known as the“Civil Rights Cases,” the Court assertedthat the rights protected by the Amend-ment were exactly those defined—toown and convey property, enforce con-

tracts, give evidence, etc.—and nothingmore. The lone dissenter was JusticeJohn M. Harlan. School segregation wasnot at issue here, but only because anattempt to prohibit it in the 1875 act hadbeen soundly defeated in Congress.

In 1878, the Court upheld segregatedtransportation in interstate commerce inHall v. DeCuir. As Justice NathanClifford noted:

“Substantial equality of right is thelaw of the State and of the United States;but equality does not mean identity, as

in the nature of things identity in the ac-commodation afforded to passengers,whether colored or white, is impossible.. . . Passengers are entitled to proper dietand lodging; but the laws of the UnitedStates do not require the master of asteamer to put persons in the same apart-ment who would be repulsive or dis-agreeable to the other.”

Justice Clifford then referred approv-ingly to segregated schools, citing theMassachusetts decision in Roberts.“[E]quality of rights does not involve thenecessity of educating white and coloredpersons in the same school any more

than it does that of educating childrenof both sexes in the same school,” hewrote, adding that “any classificationwhich preserves substantially equalschool advantages is not prohibited bythe State or Federal Constitution, norwould it contravene the provisions of ei-ther.” In Louisville, N. O. & T. RailwayCo. v. Mississippi (1890), the SupremeCourt upheld a Mississippi law requir-ing segregated railroad cars, with Jus-tice Harlan again the only dissenter.

When Homer Plessy, who was one-eighth black, refused to leave a railroadcar for whites and sit in the car for col-ored people, he was arrested and fined.When his case came before the SupremeCourt, no one familiar with the Court’shistory could have been surprised whenit upheld the Louisiana law that requiredsegregation. We are, of course, remindedover and over that Plessy was not de-cided by a unanimous bench—that Jus-tice Harlan declared, “Our constitutionis color-blind, and neither knows nortolerates classes among citizens.”

Justice Harlan was not, however, theegalitarian he is now made out to be. Justthree years after Plessy, the Court con-sidered a case known as Cumming v.Richmond County Board of Education.A black high school in Georgia had beenturned over to elementary school stu-dents, which meant the high school stu-dents had to attend school in nearbyAugusta. If the local high school hadbeen integrated, they would not have hadto go to Augusta, and the blacks claimedthey were thus deprived of equal localfacilities. The Supreme Court disagreed.In a unanimous decision written by Jus-tice Harlan himself, the Court argued:

“[W]hile all admit that the benefitsand burdens of public taxation must beshared by citizens without discrimina-tion against any class on account of theirrace, the education of the people inschools maintained by state taxation isa matter belonging to the respectivestates, and any interference on the partof Federal authority with the manage-ment of such schools cannot be justifiedexcept in the case of a clear and unmis-takable disregard of rights secured by thesupreme law of the land.”

In Berea College v. Commonwealthof Kentucky (1908) the Court upheld aKentucky statute forbidding mixed-raceprivate schools. Justice Harlan dissentedagain, but even here he was careful tostate, “Of course, what I have said hasno reference to regulations prescribed

Justice John M. Harlan

Justice Harlan was notthe egalitarian liberals

now make him out to be.


for public schools, established at thepleasure of the state and maintained atthe public expense.” Regardless of hisviews on “separate but equal” as broadlyapplied to something like public trans-portation, he never denied the right ofthe states to maintain racially separateschools.

Before 20th century theories aboutracial equivalence, people took it forgranted that racial differences justifieddifferent treatment. As the Georgia Su-

preme Court in Wolfe v. Georgia Rail-way & Electric Co. (1907) observed,“We cannot shut our eyes to the facts ofwhich courts are bound to take judicialnotice. . . . It is a matter of commonknowledge that, viewed from a socialstandpoint, the negro race is in mind andmorals inferior to the Caucasian. Therecord of each from the dawn of historictime denies equality. . . . We take judi-cial notice of an intrinsic difference be-tween the two races.”

The courts usually did not speak sobluntly, but an understanding of race wasthe foundation of many rulings. In theRoberts case mentioned above, the Mas-sachusetts Supreme Court stated that,“The power of general superintendencevests a plenary authority in the [schools]committee to arrange, classify, and dis-tribute pupils, in such a manner as theythink best adapted to their general pro-ficiency and welfare. . . .” and took no-tice of the fact that “in the opinion ofthat board, the continuance of the sepa-rate schools for colored children . . . isnot only legal and just, but is bestadapted to promote the instruction of thatclass of the population. . . . We can per-ceive no ground to doubt that this is thehonest result of their experience andjudgment.”

In 1927 the Supreme Court observed

that segregation in transportation facili-ties presents “a more difficult question”than segregation in schools. “In otherwords,” wrote constitutional authority R.Carter Pittman, “the Court took judicialnotice of the fact that it is easier to jus-tify the separation of races in schools fortwelve years than it is to justify the sepa-ration of races on trains for twelvehours.”

This case was Gong Lum v. Rice. Andif the foregoing history is insufficient toremove any doubt about the constitution-ality of school segregation, surely thiscase should settle the matter. It involveda student of Chinese descent, MarthaLum, who had been required to attend acolored school instead of a white school.The Court at that time included such lu-minaries as Chief Justice (and former USPresident) William Howard Taft, OliverWendell Holmes, and Louis Brandeis.In a unanimous decision, the Court de-clared:

“The right and power of the state toregulate the method of providing for theeducation of its youth at public expenseis clear. The question here is whether aChinese citizen of the United States isdenied equal protection of the laws whenhe is classed among the colored racesand furnished facilities for educationequal to that offered to all, whetherwhite, brown, yellow, orblack. Were this a newquestion, it would call forvery full argument and con-sideration; but we think thatit is the same questionwhich has been many timesdecided to be within theconstitutional power of thestate Legislature to settle,without intervention of thefederal courts under thefederal Constitution. . . .The decision is within thediscretion of the state inregulating its publicschools, and does not con-flict with the 14th Amend-ment.”

In 1938, the Court once again upheldsegregated schools in State of Missouriex rel. Gaines v. Canada, observing that“the state court has fully recognized theobligation of the State to provide negroeswith advantages for higher educationsubstantially equal to the advantages af-forded to white students. The State hassought to fulfill that obligation by fur-nishing equal facilities in separate

schools, a method the validity of whichhas been sustained by our decisions.”And as late as 1950, in Sweatt v. Painter,(one of the so-called “graduate school”cases), the Court handed down a rulingbased firmly on the “separate but equal”doctrine.

It was against this background that theWarren Court declared that segregatedschools violate the 14th Amendment af-ter all. The best that the Warren Courtcould glean from the history of theAmendment was that its intended effecton segregated schools was “inconclu-sive” and that “what others in Congressand the state legislatures had in mindcannot be determined with any degreeof certainty.” It is hard to see this as any-thing other than an outright lie. By thistime, over 30 Supreme Court justiceshad upheld segregation in an unbrokenchain of precedents, and the DC schoolsystem, under the oversight of Congress,continued to be segregated. In reality, theCourt simply ignored the Constitution,and based its decision on pure sociol-ogy.

The case of Beauharnais v. Illinois,rendered just two years before Brown,underlines the hypocrisy of consultingsocial science rather than the Constitu-tion. In this case, the Court specificallyrefused to do precisely what it insisted

on doing in Brown. Justice Felix Frank-furter himself wrote the decision:

“Only those lacking responsible hu-mility will have a confident solution forproblems as intractable as the frictionsattributable to differences of race, coloror religion. . . . Certainly the Due Pro-cess Clause does not require the legisla-ture to be in the vanguard of science—especially sciences as young as humanecology and cultural anthropology. . . .

Chief Justice William Howard Taft . . .

. . . would never have overturned Plessy v. Ferguson.


It is not within our competenceto confirm or deny claims ofsocial scientists as to the depen-dence of the individual on theposition of his racial or religiousgroup in the community.” Justtwo years later, the entire Courtbowed down to the social “sci-ence” of Kenneth Clark’s dollstudies. It would be hard to findso cynical a reversal.

On May 17, 1954, the Courtsubverted two great Anglo-Saxon achievements. One wasthe judicial system itself. Theemancipated judiciary, liberatedfrom control of the legislativeand executive branches, was es-tablished only after centuries ofstruggle as a last barrier againsttyranny. Now the Court itselfhad become an instrument oftyranny, usurping not merely thelegislative role, but the prerogatives ofthree-fourths of the states in amendingthe Constitution. It also trampled under-foot the Anglo-Saxon concept of law asmade only by the elected representativesof the people.

Author Rosalie M. Gordon observed

An appeal many whites could not resist.

O Tempora, O Mores!

that “the overwhelming tragedy for usall is that the Court, in its segregationdecision, stormed one of those last re-maining bastions of a free people . . .the locally controlled and supported pub-lic-school systems of the sovereign

states. For, by that decision the Su-preme Court handed to the cen-tral government a power it hadnever before possessed—thepower to put its grasping and om-nipotent hand into a purely localfunction.”

Brown v. Board of Educationmarked the beginning of a new eraduring which the Court has as-sumed the powers of an ongoingconstitutional convention. For thepast half century this former re-public has been subject to the ar-bitrary rule of judges who areunelected and unaccountable tothe people. The people hardlyknow what the law will be fromone day to the next. As CarterPittman warned, “If the SupremeCourt can make that to be law to-day that was not law yesterday, wehave a broken Constitution and a

shattered Bill of Rights.”

Mr. LeFevre is a freelance writer inWest Virginia. He is webmaster of Se-lected Works of R. Carter Pittman,www.RCarterPittman.org.

Blacks in ChargeThree black politicians have been

much in the news. The latest scandal ofJackie Barrett, the sheriff of FultonCounty, Georgia, caps a long and color-ful career. It recently came to light thatMiss Barrett illegally invested$7 million of Fulton Countyfunds, on the advice of ByronRainner, a black insurancebroker whom she met at aMartin Luther King celebra-tion in February 2002. Mr.Rainner himself was oncefound in possession of a sto-len car, and has been sued sev-eral times by creditors andmortgage companies. Mr. Rain-ner and his associates donated $4,000to Miss Barrett’s re-election campaign,and in March 2003 she gave Mr. Rainnerthe $7 million to invest.

Mr. Rainner invested $5 millionthrough MetLife—some of it in stocks,although it is illegal under state law toinvest county money in stocks. Most of

this investment has now been returned.The broker gave the remaining $2 mil-lion to Provident Capital Investments,Inc., and it has now been discovered thattwo of the company’s business associ-ates were also generous to the sheriff’sre-election campaign; each gave

$10,000. Provident Capitallent $925,000 to a Georgiapharmacy, which was laterfound shuttered, dark, and forrent; its chances of repayingthe money are slim. What hap-pened to the rest of the $2 mil-lion is a mystery. Miss Barretthas asked Mr. Rainner to giveit back, but the $200,000check he sent as the first in-

stallment bounced. Miss Barrettrefuses to resign, but she says she willnot seek re-election.

This fracas comes after a barrage ofmishaps at the Fulton County Jail, ofwhich Miss Barrett is in charge. During2002 and 2003, four prisoners escaped;fortunately, they were recaptured. In2003, guards mistakenly released two

prisoners because their paperwork waswrong. In March 2003, a jail riot injuredthree guards. In the same month, at acourt hearing on the escape of a pris-oner, a jailer testified that the locks werebroken on eight of the 12 cell doors inthe high-security unit, and prisoners wereroaming freely. Miss Barrett fired thejailer for her remarks.

The mismanagement may be due toMiss Barrett’s aggressive racial prefer-ence policies. In 1996, 16 white employ-ees sued her for “reverse discrimina-tion.” The court found in their favor anddemanded that they be paid $812,000in damages, including $180,000 in pu-nitive damages. [Mark Davis and D. L.Bennett, Feds Look Into Fulton Sher-riff’s $2 Million Mess, Atlanta Journal-Constitution, April 1, 2004. Mark Davisand Steve Visser, Investor: Sheriff WasNot Duped, Atlanta Journal-Constitu-tion, April 2, 2004. CBS-46 Atlanta,Fulton County Jail Timeline of Events.16 Deputies Win Reverse Discrimina-tion Suit Against Fulton Sheriff, AtlantaJournal-Constitution, June 13, 1996.]

Sheriff Barrett

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Arenda Troutman is a Chicago coun-cilwoman. After her home was robbedtwice in three months, she ordered apolice car outside her house around theclock at a cost to taxpayers of $366 perday. “Deserve it?” she replied to ques-tions. “Damn right. I should receive theprotection I am receiving. I am anelected official. You’re darned right.”Gun rights groups pointed out her hy-pocrisy in demanding special treatmentwhen she supports firearms laws thatmake it virtually impossible foraverage citizens to protectthemselves. The police later re-moved the squad car.

Soon thereafter, during a raidon the Black Disciples, a druggang in her constituency, policefound an envelope from theChicago Police Department ad-dressed to Miss Troutman.This led to awkward questions,and the discovery that she had acceptedcampaign donations from the gang. Thecouncilwoman held a press conferenceand claimed she believed she was deal-ing with businessmen. She even praisedtheir motives: “Their concern was myconcern . . . trying to help the helpless,give hope to the hopeless.” Her pressconference came with impeccable tim-ing; Miss Troutman’s brother had justbeen arrested on drug charges.

Suspicions that Miss Troutman wasnot being honest about her “business”relationship with the gang were vindi-cated when she admitted she had datedDonnell “Scandalous” Jehan. He was animportant leader of the Black Disciples,who controlled drug sales in one Chi-cago neighborhood, and is currently onthe run. According to an associate, MissTroutman was completely taken with Mr.Jehan, and believed he “might be theone.” Now she feels “like she’s beentricked.” Miss Troutman shows everysign of remaining in office. [Susan Jones,Guns Protect City Official, but Not HerConstituents, Group Complains,CNSNews.com, May 11, 2004. AnnieSweeney, Gang Leaders Helped ElectTroutman, Chicago Sun-Times, May 26,2004. Annie Sweeney, Troutman’sBrother Arrested in Drug Sting, ChicagoSun-Times, May 27, 2004. Fran Spiel-man, Troutman ‘Feels . . . Like She’sBeen Tricked,’ Chicago Sun-Times, May28, 2004.]

Ronnie Few’s two years as Washing-ton, DC Fire Chief came to an end in2002. During his tenure, the District’s

fire trucks and radio system fell into dis-repair and response times to emergen-cies increased. Whites also sued him fordiscrimination. In 2002, when he hiredbattalion chiefs, he ignored a number ofwhite candidates. Under pressure, heagreed to interview them, but the plain-tiffs say the interviews were “farcical.”He asked asked only a few questions andtook no notes.

In May, a DC inspector general’s au-dit of the department found some sur-

prises. Mr. Few maintained sev-eral illegal cash accounts heused to pay for parking tickets,business cards, and clothing,and from which he took salaryadvances. The audit also foundillegal purchases in 15 of the 22credit card accounts it exam-ined. One employee illegallyspent $5,000 on food and enter-tainment. Audits of a random

sample of 25 department contracts un-der Mr. Few found irregularities in allof them. In 23 of the 25, there was norecord that the goods or services wereeven paid for or received.

This is not the first time Mr. Few hasleft a fire department in chaos. He wasfire chief in Augusta, Georgia, before hemoved to Washington. In July 2002,shortly after Mr. Few resigned from theDC department, a Georgia grand juryfound undocumented spending, doublebilling, bogus reimbursements, illegalbank accounts, and rampant hiring ofcronies. The grand jury reported that Mr.Few was nothing less than a “bandit,”and his case has gone to a special pros-ecutor. [David A. Fahrenthold, Old Ten-sions Resurface in Lawsuit Over Promo-tions, Washington Post, March 28, 2004.Matthew Cella, Audit Uncovers MisusedMillions, Washington Times, May 17,2004. Heidi Coryell Williams, GrandJury Says Chief Was ‘Bandit,’ AugustaChronicle, July 10, 2002.]

Great Idea!The federal government requires lo-

cal hospitals to treat illegal aliens, butdoesn’t adequately reimburse them.Congresswoman Jo Ann Davis (R-VA)hopes to change that. She recently in-troduced legislation called the “Coun-try of Origin Healthcare AccountabilityAct,” which would deduct the cost ofmedical care to illegal aliens from theforeign aid allotment received by theirnative countries. She says paying for the

treatment of illegals with US money is“bad policy” and that countries allow-ing their citizens to come here illegallyshould pay for them. “There’s the hopewith taking back money from thosecountries, they would then put pressureand be stricter on their borders and notallow so many illegals to come across.”[Congresswoman Says Foreign AidShould Pay Illegal Aliens’ Bills, AP/WFLS News, May 31, 2004.]

Reversing the TrendFormer Arkansas state representative

Jim Bob Duggar, 38, and his wifeMichelle, 37, may be single-handedlytrying to reverse the demographic de-cline of whites. On May 23, Mrs. Duggargave birth to the couple’s 15th child, aboy named Jackson Levi. Jackson’s ninebrothers and five sisters range in age

from one to sixteen, and he may not bethe last. Mr. Duggar says he and his wife“both love children” and that she toldhim “she would like to have some more.”[Arkansas Family Celebrates 15th Child,AP, May 25, 2004.]

Veil of FearsIn February, the French National As-

sembly overwhelmingly passed a lawbanning “symbols and clothing that os-tentatiously show students’ religiousmembership” in public schools. Al-though it prohibits all religious items,including Christian crosses, the law ismeant to keep Muslim girls from wear-ing the traditional headscarf known asthe hijab.

Although the law doesn’t go into ef-fect until September, French stateschools are already enforcing the hijabban. Last November, a twelve-year-oldTurkish girl was expelled from a school

Arenda Troutman


in Thann for wearing the scarf. Schoolauthorities allowed her to attend anotherarea school on the condition that shewear a much smaller bandanna ratherthan the head-and-shoulders hijab, butafter a few days, she showed up in fullregalia. Teachers went on a day-longstrike to protest her disobedience, and

school authorities expelled her again.She will probably continue her educa-tion at home through correspondencecourses. Other schools have expelledMuslim girls for violating the ban. [Sec-ond Expulsion for Veiled Schoolgirl inFrance, Reuters, May 25, 2004.]

UN bureaucrats say the French lawviolates the International Convention onthe Rights of the Child, which guaran-tees religious freedom for children, andthe UN Committee on the Rights of theChild recently scolded the French Min-ister for the Family, Marie-Josee Roig.Committee member Mushira Kattab ofEgypt said the ban was spreading fearamong French Muslims, and that the lawcould fuel anti-Muslim extremism. JacobEgbert Doek of the Netherlands de-manded to know how a headscarf “dis-turbs a classroom.”

Minister Roig says the ban is consis-tent with French policies on the totalsecularization of public schools, andencourages assimilation. “It’s the fruitof a long history and common values thatare the foundations of national unity,”she explains. “We want to continue topreserve total neutrality in our schools.”[UN Experts Slam French School Banon Headscarf, AFP, June 2, 2004.]

An Era PassesAlberta Martin, the last Civil War

widow, died on Memorial Day in Enter-prise, Alabama, at the age of 97. In 1927,she married an 81-year-old Confederateveteran, William Jasper Martin, whenshe was just 21. Although it was prima-

rily a marriage of convenience—Mrs.Martin was a poor young widow with ayoung child—the couple did produce achild of their own, William, in 1929. Mr.Martin died in 1931.

Although Mrs. Martin lived most ofher life in obscurity, for the past severalyears she was the honored guest at meet-ings and rallies held by the Sons of Con-federate Veterans, at which she proudlywaved a small Confederate battle flag.“I don’t see nothing wrong with the flagflying,” she often said. Mrs. Martin en-joyed her role as the final link to the OldSouth and loved the attention she re-ceived from history buffs, saying, “It’slike being matriarch of a large family.”

She outlived the last surviving Unionwidow by more than a year. GertrudeJaneway, who married 81-year-oldUnion army veteran John Janeway whenshe was 18, died in Tennessee in Janu-ary 2003 at the age of 93. [Phillip Rawls,Alberta Martin, Last Civil War Widow,Dies at 97, AP, June 1, 2004.]

Those Bad BritsThe Mcpherson Report, which exam-

ined the police investigation of the mur-der of black British teenager StephenLawrence in 1993, said British societyis “institutionally racist” (see “Whites asKulaks,” AR, Jan. 2002). A newly re-leased study by a British “anti-racist”think tank has discovered something justas bad—institutional Islamophobia.

The Commission on British Muslimsand Islamophobia says the governmentand private anti-racism organizations arenot doing enough to fight prejudice. Dr.Richard Stone, the commission chairmanand an adviser to the body that issuedthe Mcpherson Report, says life for Brit-ish Muslims got harder after Sept. 11,2001: “There is now renewed talk of aclash of civilizations and mounting con-cern that the already fragile footholdgained by Muslim communities in Brit-ain is threatened by ignorance and in-tolerance.”

The commission singles out the po-lice as the worst offenders. It claims thenumber of south Asians questioned in“stop and search” operations has in-creased by 41 percent since the Septem-ber 11 attacks. “Even one of the coun-try’s Muslim peers, Lord Ahmed, hasbeen stopped twice by police,” sayscommission adviser Dr. Abduljalil Sajid.The report warns that unless the govern-ment adopts its recommendations and

integrates Muslims into all aspects ofBritish life, the country will see morerioting and further radicalization of Brit-ish Muslims. [Dominic Casciani, Islamo-phobia Pervades UK—Report, BBCNews Online, June 2, 2004.]

“Patel Motels”Indians from India own 60 percent of

all small and mid-sized motels and ho-tels in America. Of these, Indians namedPatel own a third. “The trend started inthe early 1940s, though the real growthtook place in the 1960s and 1970s,” ex-plains Rajiv Bhata, president of a hotelfranchise chain. “Indians came not onlyfrom India but a sizable chunk arrivedfrom East Africa during the late 60s and

early 70s, where political unrest droveout the Indian business class, whichstarted looking for new lands and newbusiness opportunities.”

The Indians took advantage of adownturn in the hotel market, buyingbelow-market properties and fixing themup. They hired family members to keeplabor costs down, and when they wantedto expand, they used the family-reunifi-cation provisions of post-1965 immigra-tion laws to import workers.

Mike Patel, founder of the AsianAmerican Hotel Owners Association(AAHOA), says Indian owners were notgenerally welcomed by the locals, par-ticularly in rural areas, and that Ameri-can guests complained about Indian ho-tel operators. He says it was not uncom-mon for them to cook curry behind thefront desk and let their children run loose

A Patel and his motel.

The fate of the West?


in the lobby. He founded the AAHOA inpart to teach Indians the basics of hotelmanagement and customer relations.[Chhavi Dublish, America’s Patel Mo-tels, BBC News Online, Oct. 10, 2003.]

Indians have found other problems intheir new country. On June 1, FloridaAttorney General Charlie Crist chargedRaj Patel, owner of the Southern Inn inPerry, Florida, with discriminationagainst blacks. The authorities beganinvestigating when a black couple com-plained that “coloreds” weren’t allowedto use the swimming pool. Severalblacks said Mr. Patel would pour chemi-cals into the pool immediately afterblacks got out of it, and that once he didso while black children were still swim-ming. They said his wife charged blackguests $5 each to use the pool, and thenMr. Patel “raged” at them to get out.Other blacks say Mr. Patel assigned themto unattractive, badly-maintained rooms.

Mr. Patel’s lawyer, Earl Johnson, Jr.,says the accusations are false, and thathe can produce blacks who will vouchfor his client. “He’s a person of colorand truly treats everyone with equal re-spect and hospitality,” he says. [BrendanFarrington, Fla. AG: Motel Discrimi-nated Vs. Blacks, AP, June 2, 2004.]

Marry-Go-RoundAn alert employee in the Milam

County, Texas, clerk’s office noticed thata number of people seemed to be get-ting married over and over in a singleyear. Investigators discovered a phony

immigrant marriage racket operated bytwo Houston women, Aminata Smith andEmma Guyton. US Attorney MichaelShelby says the pair were brokers forAfrican and Middle Eastern immigrantswho wanted to marry US citizens. The

immigrants paid be-tween $1,500 and$5,000 and came intothe country legally, usu-ally on student visas.The brokers paidAmericans $150 to$500 to go throughwith the phony mar-riages, and the immi-grants were then eli-gible for green cards.

Mr. Shelby saysMiss Smith and MissGuyton arranged 210fake marriages betweenApril 2000 and July 2003, and hascharged each with inducing illegal im-migration, marriage fraud, and con-spiracy. They could face up to 70 yearsin prison and more than $2 million infines. The 36 US citizens who marriedthe foreigners each face one count ofmarriage fraud. Prosecutors say the im-migrants, who came from Algeria,Cameroon, Gabon, Guinea, Israel, Jor-dan, Kenya, Mali, Nigeria, Pakistan,Senegal, Sierra Leone, Tanzania andUganda, will be deported. [Juan A. Loza-no, 2 Women Indicted in Texas MarriageFraud, AP, May 26, 2004.]

Shocking StatisticsTwo sociologists from the National

Council of Scientific Research in Francerecently conducted a survey of minorswho were convicted between 1985 and2000 by the courts of Grenoble, a cityin the southwestern French district ofIsère. They found that although immi-grant families make up only 6.1 percentof Isère’s population, an astonishing 66.5percent of the convicts had a foreign-born father, and 60 percent had a for-eign-born mother. The fathers of 49.8percent of the offenders were from north-ern Africa. This is a nationwide prob-lem. The Institut National des Statis-tiques et des Études Économiques hasfound that 40 percent of French prison-ers had a foreign-born father; 25 percenthad a father born in northern Africa. Oneresearcher writes, “The overrepre-sentation of youths of foreign originamong juvenile delinquents is wellknown, but this fact is little reported andnever debated in the public sphere.”[Selon une Étude Menée en Isère, DeuxTiers des Mineurs Délinquants sontd’Origine Étrangère, Le Monde (Paris),April 15, 2004.]

From Bad to WorsePoverty is on the rise in sub-Saharan

Africa. According to the World Eco-nomic Forum, most black African coun-tries are worse off today than when theywere colonies. Per capita income has de-creased by 11 percent since 1974, whilethe rest of the world averaged an increaseof two percent a year. In 1970, Africansmade up 10 percent of the world’s poor;in 2000, they made up 50 percent. TheWorld Bank reports that the number ofsub-Saharan Africans living in extremepoverty, defined as an income of lessthan one dollar a day, increased from 164million in 1981 to 314 million in 2001.The region’s percentage of extremelypoor people rose from 41.6 percent to46.5 percent, while it decreased from 40percent to 21 percent in the rest of thedeveloping world.

The gross domestic product of sub-Saharan Africa decreased by 15 percentbetween 1981 and 2001 while it rose by500 percent in China. A South Africanuniversity study found that incomesamong the blacks of that country de-clined since the end of white rule. Be-tween 1995 and 2000, the average blackhousehold income declined by 19 per-cent, while that of the average whitehousehold increased by 15 percent. Inblack townships surrounding CapeTown, 76 percent of households werebelow the poverty line. Over half of thesehouseholds had no earned income at all.Educational attainment has little effecton black South Africans’ job prospects.[Report: Dismal African Economy ‘Di-saster,’ Associated Press, June 2, 2004.Extreme Poverty Doubled in SouthernAfrica in 20 Years, Business Day, April27, 2004. SA Blacks ‘Getting Poorer,’BBC News, May 13, 2004.]

A slum in South Africa.

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Documents

200407 American Renaissance