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| Law professor Michael Klarman spent
six years working on From Jim Crow to Civil Rights: The Supreme
Court and the Struggle for Racial Equality. |
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Posted March 16, 2004
Klarman's Book Details Role of Supreme Court
in Ending Segregation
It's now conventional wisdom that Brown vs. Board of Education, the
1954 Supreme Court decision that demolished the legal basis for segregated
schools, is the Court's most important ruling of the 20th century.
But the Justices who made the ruling weren't so confident they'd done
the right thing, and the matter of exactly why it is so important is
also disputed. In a new definitive history of the Court's role in healing
America's long-running race wound, constitutional law scholar Michael
J. Klarman has told the saga in vivid detail and resolved the theorizing
over Brown's significance. In From Jim Crow to Civil Rights:
The Supreme Court and the Struggle for Racial Equality, published
in January by Oxford University Press, Klarman shows that Brown did
not launch the Civil Rights Movement; instead it stirred a backlash
that exposed the violent nature of Jim Crow and thus led to the landmark
civil rights legislation of the 1960s.
“Race is the dominant issue in American constitutional history, from Dred
Scott on through the post-Civil War amendments, Plessy
v. Ferguson—which established the notion of separate but equal—and Brown,” Klarman
said. “You could make the case that W.E.B. Du Bois was right in 1903
when he said that race—“the problem of the color line”—is the dominant
national issue of the 20th Century.”
“In the book, I'm reacting against a view that strikes me as both
prevalent and misguided, namely the legal-centric view that Brown created
the Civil Rights Movement,” he said. Klarman considers World War II
to be the real catalytic event for the Civil Rights Movement. Black
soldiers who risked their lives on battlefields in World War II, a
war fought to crush the racist ideology of Nazism, were determined
that America should live up to its democratic creed. Recognizing the
potential of black political power, Truman integrated the armed forces
in 1948, following the lead of the Brooklyn Dodgers who integrated
baseball by signing Jackie Robinson in 1947. The racial climate had
shifted. But was it enough to end segregated schools?
“The legal challenge to the notion of separate-but-equal was brought
by NAACP lawyers headed by Thurgood Marshall. If separate-but-unequal
could be proven, then segregation laws based on Plessy would
in fact be in violation of the 14th Amendment and its equal protection
clause.” In 1950, in the case of Sweatt v. Painter, they
succeeded in denting segregation's armor when the Supreme Court ruled
that separate law school facilities were “not substantially equal.” Complete
victory came with Brown on May 17, 1954, in a ruling that
covered five similar cases from Kansas, Delaware, South Carolina, Virginia,
and the District of Columbia, when the Supreme Court unanimously invalidated
racial segregation in public schools. A year later in Brown II the
court temporized about how fast the change had to happen. Gradualism
had been a condition set by some justices for getting a unanimous decision
in the first ruling. Polling showed that the nation as a whole preferred
a gradual approach.
“Brown is contrary to precedent and the original understanding
of the 14th Amendment,” Klarman said. “Several of the justices thought
it was hard to say that the ruling was right as a legal matter. I went
through a period in which I tried to figure out myself why the decision
was right.” Klarman first investigated the question of how to justify Brown as
a legal decision in a Virginia Law Review article in 1991;
he concluded that the widespread exclusion of blacks from southern
politics might have justified the Court's intervening to strike down
school segregation. A second VLR article in 1994 developed
his thesis about the ruling's backlash effects, and he resolved on
writing the book. “I thought it would be useful to write a general
history that looked at the constitutional history of race discrimination
systematically.”
Klarman said the staggering amount of primary and secondary sources
on the history of race discrimination in the 20th century meant that
he had enormous amounts of research to do. Besides the academic literature
on race relations, economic and political history, the NAACP records,
and the papers of the Supreme Court justices, Klarman digested such
sources as the Southern School News, a voluminous monthly
report on desegregation efforts that was published for 15 years and
was a treasure trove of information.
Three years ago he became aware of the rapid approach of the 50th
anniversary of Brown. The realities of the publishing industry
meant if his book were to appear by the anniversary, it would have
to be finished at least a year in advance.
“I'm really pleased that I'm done. I've been fixated on this project
for at least the last six years, putting in more 80-hour weeks than
I care to recall,” said Klarman, who joined the Virginia faculty in
1987. He is now the James Monroe Distinguished Professor of Law, the
Albert C. Tate, Jr. Research Professor, and Professor of History. Known
as a superb teacher and for his booming lecture voice, he has earned
a State Council of Higher Education Faculty Award and U.Va.'s All-University
Teaching Award.
“Brown forced people to take a position on school desegregation,
which many of them had not done before,” he said. Moderate southern
politicians could not be moderate on desegregation without losing their
jobs. Northern politicians voiced support for Brown but were
unwilling to take genuine steps to enforce it. Whites generally made
up their minds “without taking instruction from the justices.” Polls
revealed no large attitude shift as a result of Brown; a 5
percent increase in support of the ruling seen in 1959 could have been
influenced by extra-legal forces, Klarman said.
Still, “Brown was of enormous symbolic importance for African-Americans,” because
it convinced them change was possible. “There's no doubt that Brown facilitated
black protests.” In the 1950s, just signing a petition to desegregate
schools in the Deep South was an extraordinary act of courage. “Brown clearly
prompted southern blacks to challenge Jim Crow more aggressively” than
they might have otherwise done, Klarman said.
However, the evidence that Brown acted as a “spiritual father” for
direct-action protest such as sit-in demonstrations is weak, and in
the short term the decision may have discouraged such protest by promoting
litigation. “After the NAACP's inspiring victory, perhaps most blacks
were inclined to see in the short term what litigation could deliver,” he
said. In the long-term, Brown may have encouraged direct-action
protests, as southern whites engaged in massive resistance to school
desegregation, dashing the hopes raised by Brown.
Following Brown, hundreds of NAACP branches closed in the
1950s because of the backlash caused by the ruling; some NAACP lawyers
had their homes firebombed. Other organizations like the Southern Christian
Leadership Conference sprang up to fill the gap. In addition, “Brown may
have directly fostered violence against southern blacks.” Southern
politicians indirectly encouraged such violence. Birmingham police
commissioner Bull Connor unleashed police dogs and fire hoses against
peaceful black protestors. Connor had actually been pushed out of office
in the early 1950s by civil and political leaders who regarded him
as an embarrassment because of his racial extremism. After his ouster,
the city had made progress on race, including building the first hospital
for blacks and desegregating elevators in downtown office buildings.
Connor made a political comeback after Brown, and civil rights
leaders picked Birmingham as the site for their demonstrations because
they suspected the commissioner would overreact.
George Wallace similarly became a “die-hard segregationist” after Brown and
won the governorship in 1962 on a promise to stand in the schoolhouse
door to block integration. After impeding desegregation in grade schools
across the state in September 1963, Wallace backed down when he was
threatened with judicial contempt orders, but soon after a black church
was bombed, killing four teenage girls, and Wallace received much of
the blame.
Brown brought “to the surface the violence that always lay
at the core of white supremacy,” Klarman said. “Brown was
less directly responsible for putting protestors on the street than
is commonly assumed and more directly responsible for the violent reception
they suffered.” That violence, vividly communicated to national television
audiences, profoundly influenced northern opinion on race.
The moral is that “if the court pushes on an issue where public resistance
is greatest, that creates a backlash and possibly even a retrogression, ” he
said, adding that a comparison can be drawn between Brown and
the recent Massachusetts decision on same-sex marriage. When courts
get ahead of public opinion, Klarman said, they rally opposition, undermine
moderates, and sometimes retard the causes they purport to advance.
And while the violent southern backlash produced by Brown generated
a counter-backlash in northern opinion, it is unlikely that gays and
lesbians will face pervasive violence of the kind that outrages moderates
and turns the tide of public opinion once and for all.
• Reported by M. Marshall
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