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Race, Law, and Schooling in America. The Brown Decision. Brown.

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Looking at the state of education for blacks in his pivotal report on American race relations An American Dilemma (1944), Gunnar Myrdal reported a “complete lack of schools in some rural areas, an insufficient number of schools in other areas, a grave lack of equipment, a lack of enforcement of the truancy laws for Negroes, an inferior quality of teacher training, [and] differential payment to teachers"

the plessey decision
The Plessey Decision

With the migration of blacks from the South to the North in the first decades of the Twentieth Century an organized effort emerged to challenge these egregious disparities. Funded by the NAACPa concerted legal attack was staged against Jim Crow laws and segregated schooling.

The architect of this campaign was Charles Hamilton Houston, one time dean of Howard University law school.

the plessey decision1
The Plessey Decision

Assisted by several of his former students, including Thurgood Marshall, Huston pursued the twin strategy of challenging the exclusion of blacks from public universities (in particular, graduate schools of law) and the practice of underpaying black teachers.

Success came in 1938 when the Supreme Court ruled that the state of Missouri must provide a law school for African Americans as (following Plessey) the legitimacy of segregated institutions "rests wholly upon the equality" they provided to the separated groups.


While continuing to make incremental advances at the Supreme Court, by the end of the Second World War the mood of the NAACP lawyers had changed. Soldiers came back from Europe demanding substantial changes that the South could not subvert.

Determined to make more rapid progress and tired to of costly and time consuming piecemeal victories Huston and Marshall called for radical change of strategy. No longer content with equal facilities and funding, they decided to go after segregation itself.


This approach paid off in 1950 when the Supreme Court ruled that the state of Texas could not just offer separate and “equal” facilities for black law students. Without the same distinguished faculty and reputation for excellence the black school could never match the University of Texas Law School.

Marshall (Huston had died by this time) was now ready to purse this argument to its logical conclusion by attacking segregation at all levels of public schooling.


To this end the NAACP presented plaintiffs in four states and the District of Columbia.

By July 1951 lower courts had ruled against the NAACP in Bolling v. Sharpe (Washington, DC), Briggs v. Elliott (Clarendon County, S.C.); and Brown v. Board of Education (Topeka, Kan). The following spring Davis v. School Board of Prince Edward County (Virginia) followed suit.


Then, in Delaware Belton v. Gebhart and Bulah v. Gebhart, plaintiffs were admitted to white schools on the grounds that segregation as practiced in Delaware was unconstitutional.

However, the judge concluded that the U.S. Supreme Court would have to strike down Plessey.


In 1952 the high court agreed to hear appeals in all five of the cases. The four state cases brought by the NAACP were gathered together under the title Brown v. Board of Education, Topeka—so as not to directly challenge the South.

During this time justice Fred Vinson died, and Eisenhower appointed Earl Warren as chief justice. While not a strong legal scholar Warren was a powerful politician bent on achieving consensus.


Two issues proved central to the case. Did the rule of “separate but equal” follow from the 14th Amendment?

How could lawyers prove that segregation damaged the discriminated child?

While Constitutional scholars set to work on the first, social scientists answered the second.


Particularly important were Mydral’s American Dilemma—which claimed that race prejudice so obviously contradicted political ideas of democracy the nation suffered a kind of Schizophrenia.Whites created a situation in which blacks were trapped and then pointed to the poor performance of blacks as reason for their oppression. The only way out of this cycle, was either to cure whites of prejudice or improve the circumstances of blacks, which would then disprove whites' preconceived notions.


Perhaps more influential was the research of Kenneth Clarke demonstrating the effects of prejudice on the minds of children. Interviewing black boys and girls he found that they often preferred to play with white dolls because they disliked toys that looked like themselves.

Black, they revealed was bad and ugly, whereas white was good and pretty. These findings were taken to demonstrate that segregation caused children to internalize racism.


Interestingly the vision of childhood innocence seemed to play a striking role in the rhetoric for principles of justice in a wicked and corrupt society.

Consider the images of Sarah Roberts, Linda Brown, and later Ruby Bridges, young children forced to bear the evils of racism.


Here is how Charles Sumner appealed to the nobler sentiments by equating the natural innocence of a little girl with the pure principles of justice.

It would be difficult to imagine any case appealing more strongly to your best judgment, whether you regard the parties or the subject. On the one side is the City of Boston, strong in wealth, influence, character; on the other side is a little child, of degraded color, of humble parents, and still within the period of natural infancy, but strong from her very weakness, and from the irrepressible sympathies of good men, which, by a divine compensation, come to succor the weak. This little child asks at your hands her personal rights.


As for the 14th Amendment, the legal arguments were far less persuasive. How could the framers have wanted to exclude race from consideration given their explicit denial of the colorblind clause proposed by Wendall Phillips?


Indeed many find it hard to reconcile the relationship between the 14th Amendment and the social science evidence.

Did the justices listen to the law or to science?


Clarence Thomas has written that at the very least, Brown has been misunderstood by the courts.

Brown I did not say that "racially isolated" schools were inherently inferior; the harm that it identified was tied purely to de jure segregation, not de facto segregation. Indeed, Brown I itself did not need to rely upon any psychological or social-science research in order to announce the simple, yet fundamental truth that the Government cannot discriminate among its citizens on the basis of race. . . .Segregation was not unconstitutional because it might have caused psychological feelings of inferiority. Public school systems that separated blacks and provided them with superior educational resources making blacks "feel" superior to whites sent to lesser schools — would violate the Fourteenth Amendment, whether or not the white students felt stigmatized, just as do school systems in which the positions of the races are reversed. Psychological injury or benefit is irrelevant. . . .Given that desegregation has not produced the predicted leaps forward in black educational achievement, there is no reason to think that black students cannot learn as well when surrounded by members of their own race as when they are in an integrated environment. Because of their "distinctive histories and traditions," black schools can function as the center and symbol of black communities, and provide examples of independent black leadership, success, and achievement.


Robert Bork sees the judges as forced to choose between segregation and equality—and equality was bound to win.By 1954, when Brown came up for decision, it had been apparent for some time that segregation rarely if ever produced equality. Quite aside from any question of psychology, the physical facilities provided for blacks were not as good as those provided for whites. That had been demonstrated in a long series of cases . . . The Court's realistic choice, therefore, was either to abandon the quest for equality by allowing segregation or to forbid segregation in order to achieve equality. There was no third choice. Either choice would violate one aspect of the original understanding, but there was no possibility of avoiding that. Since equality and segregation were mutually inconsistent, though the ratifiers did not understand that, both could not be honored. When that is seen, it is obvious the Court must choose equality and prohibit state-imposed segregation. The purpose that brought the fourteenth amendment into being was equality before the law, and equality, not separation, was written into the law.


On May 17, 1954, in plain and authoritative language the justices presented a unanimous decision.

"To separate them from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely to ever be undone.”

They concluded in the “field of public education the doctrine of 'separate but equal' has no place. Separate educational facilities are inherently unequal."


But this grand and eloquent decision was accompanied by one of the most problematic clauses in legal history. When it came to implementation of the decision a year later (Brown II), the justices instructed local districts to organize public schooling "on a racially nondiscriminatory basis with all deliberate speed."

brown ii
Brown II

As we will see in the next lecture, over the years a key issue became the meaning of nondiscrimination—which was not defined by Brown II.

The NAACP argued for rejecting any consideration of color; they wanted colorblind laws. Later critics came to see that such rules, while seemingly fair and just actually perpetuated segregation and inequality.