The Smart Culture. Robert L. Hayman Jr.

context. These were not restrictive covenants or law schools; these were public schools, primary and secondary, and changes here would be far-reaching. And these were not revolutionary times: Rosa Parks refused to give up her seat on a Montgomery bus to a white man in December 1955, a full year and a half after the first Brown decision. Whatever the state of legal thought, then, Brown was not, in a practical sense, merely conventional at all.

      And, for that matter, it was not conventional in purely legal terms. Chief Justice Earl Warren did in Brown what Vinson had declined to do in Sweatt: he explicitly rejected the “separate but equal” rule of Plessy, in part by rejecting Plessy’s absurd suggestion that the badge of racial inferiority is self-imposed. Simultaneously, Warren did in Brown what Vinson had been unable to do in Shelley: he identified the inequality that inhered even in “indiscriminate” racial segregation. Compulsory segregation, Warren concluded, generated a stigma of racial inferiority: this was the inequality, and it inhered in the very fact of segregation, and it was why—whatever the “tangible” differences between the schools—the segregation of public school students was inherently unequal.

      Moreover, Warren sought to prove it, and his efforts took him outside the insular realm of the law, beyond legal abstraction and vacuous form, and into the world of experience. It was common sense, in part—as for Harlan, “everyone knows” the real message of Jim Crow—but it was also evidence from the social sciences: a short footnote provided a cursory summary of the evidence establishing the connection between racial segregation and self-concept, and between self-concept and achievement. A brief full of evidence had been submitted to the Court by a coalition of social scientists; to them, Warren’s footnote seemed almost perfunctory. But to conventional legal thinkers, this brief acknowledgement of other disciplines—even the suggestion that there was a social world in which equality might be measured—was revolutionary; and for many of them, it was also wrong.²⁸

      Brown v. Board of Education (Brown II). Brown I declared that segregation was unconstitutional, but it did not determine the appropriate remedy. That decision it postponed for a year, till the reprise of the case in Brown II. The Court there seemed to retreat: it remanded control of the cases to the local district courts and ordered desegregation to proceed “with all deliberate speed.” It seemed a recipe for disaster. The local federal judges were, after all, a part of the segregated community—“steeped in the same traditions that I am” rejoiced Georgia Lieutenant Governor Ernest Vandiver—and the Court’s ambiguous rhetoric hardly gave them a decisive mandate. But their performance surprised: district courts decided nineteen desegregation cases within a year of Brown II> and the plaintiff NAACP prevailed in every case. Typical was the decision of Louisiana district court judge J. Skelly Wright: “The magnitude of the problem may not nullify the principle. And that principle is that we are, all of us, Americans, with a right to make our way unfettered by sanctions imposed by man because of the work of God.”

      As for the Supreme Court, it is hard to say what happened between Brown I and Brown IL For some, Brown II was proof that white America was not serious about racial equality. NAACP attorney Lewis Steel wrote that “Never in the history of the Supreme Court had the implementation of a constitutional right been so delayed or the creation of it put in such vague terms. The Court thereby made clear that it was a white court which would protect the interests of white America in the maintenance of stable institutions.” Years later, Professor Derrick Bell would survey the law and reach the same result: the Cold War gave white America a reason to declare segregation unconstitutional in Brown/, but white America had no interest in achieving real integration. Brown II merely demonstrates Bell’s “interest convergence” thesis: the Supreme Court grants equality to black Americans only when, and to the extent that, it converges with the interests of white America.

      For others, Brown II was more a strategic retreat. The reaction to Brown I was stronger, perhaps, than the Court had anticipated, and official support for the Court’s position was undoubtedly much weaker. Warren waited in vain for an expression of support from the White House; Eisenhower, personally conflicted over the matter, remained resolutely silent. “If Mr. Eisenhower had come through,” Associate Justice Tom Clark would later say, “it might have changed things a lot.” But Eisenhower was noncommittal. The president of the newly formed Southern Christian Leadership Conference made repeated attempts to coax a statement of public support for the Brown decision, but always Dr. Martin Luther King’s efforts were to no avail. After a fruitless meeting with Eisenhower, King reported, “I fear that future historians will have to record that when America came to its most progressive moment of creative fulfillment in the area of human relations, it was temporarily held back by a chief executive who refused to make a strong positive statement morally condemning segregation.” Interestingly, Dr. King did find one friend in the administration, one official who publicly said: “There is a vital need for America to recognize that this is basically a moral problem.” “If he’s not sincere,” King said of Vice President Nixon, “he is the most dangerous man in America.”²⁹

      Cooper v. Aaron. Eisenhower’s hand, meanwhile, had been forced to some extent by the events in Little Rock, Arkansas. The all-white Central High School was to be desegregated by nine black students at the beginning of the 1957 school year, and despite the incendiary rhetoric of state officials, the effort was expected to proceed peacefully. But on the appointed day, Governor Orval Faubus sent the Arkansas National Guard to Little Rock, ostensibly to maintain the peace, but effectively to block the admission of the students. After a two-week stalemate, and a private meeting with President Eisenhower, Faubus called off the guard. But by now, the guard was genuinely needed: an angry white mob was assembling at the school each morning; desegregation would be impossible without protection. Melba Pattilo Beals was one of the nine students; she described what happened on Monday, September 23:

      The first day I was able to enter Central High School, what I felt inside was terrible, wrenching, awful fear. On the car radio I could hear that there was a mob. I knew what a mob meant and I knew that the sounds that came from the crowd were very angry. So we entered the side of the building, very, very fast. Even as we entered there were people running after us, people tripping other people. Once we got into the school, it was ver}” dark; it was like a deep, dark castle. And my eyesight had to adjust to the fact that there were people all around me. We were met by school officials and very quickly dispersed our separate ways. There has never been in my life any stark terror or any fear akin to that.

      I’d only been in the school a couple of hours and by that time it was apparent that the mob was just overrunning the school. Policemen were throwing down their badges and the mob was getting past the wooden sawhorses because the police would no longer fight their own in order to protect us. So we were all called into the principal’s office, and there was great fear that we would not get out of this building. We were trapped. And I thought, Okay, so I’m going to die here, in school. And I remember thinking back to what Fd been told, to understand the realities of where you are and pray. Even the adults, the school officials, were panicked, feeling like there was no protection. A couple of kids, the black kids that were with me were crying, and someone made a suggestion that if they allowed the mob to hang one kid, they could then get the rest out.

      On Wednesday, September 25, a frustrated Eisenhower recognized that the costs of inaction outweighed those of acting; he sent the 101st Airborne to Little Rock to secure the safety of the nine black students. That day, Beals would later recall, “I went in not through the side doors, but up the front stairs, and there was a feeling of pride and hope that yes, this is the United States, yes, there is a reason I salute the flag, and it’s going to be okay.”

      For the Supreme Court, however, the dispute in Little Rock was just beginning. The school board requested a two-year hiatus from the desegregation effort; the federal courts refused to grant it. The dispute went to the Supreme Court, which convened an extraordinary special session in September 1958.

      What made the dispute in Cooper v. Aaron so remarkable was its subtext. The explicit premise of most of the resistance to Brown had been the contention that the case was wrongly decided and that, accordingly, state authorities were not bound by the Supreme Court decision.