October 20. 2015 The Development and Execution of the Strategy to Reverse Plessy v. Ferguson & Beyond Co-Captains: Newbern & Passino; Reporter: Chastity Goodner Liason: Justice Wm. C. Koch, Jr. Team Leaders: Jimmy Balser, Robb Bieglow, Seannalyn Brandmier, Kimberly Faye, Randy Kinnard, Brent Lankford, John Manson, Hon. Aleta Trauger PROGRAM & MATERIALS OVERVIEW Introduction. The October 20, 2015, program addresses Charles Hamilton Houston - Harvard Law School graduate, Dean of Howard Law school, and the gifted architect of the strategy to overturn Plessy v. Feguson, 163 U.S. 537 (1896) - and the steps that he and his extraordinary associates took in their journey to Brown v. Board of Education, 347 U.S. 483, 495 (1954). After two arguments in successive years, a unanimous Court in Brown held that separate is not equal and is a doctrine that has no place under the Constitution. Brown, decided almost 60 years after Plessy and following Houston’s death, represented both the culmination of Houston’s campaign and the commencement of radical, tumultuous changes in the fabric of American society. This memo supplements the program and provides (1) a brief discussion of Plessy and the problems it presented for Houston; (2) a thumbnail sketch of the legal history leading to Plessy and the post-Plessy environment for African-Americans, additional barriers to Houston’s campaign to change the law and the lives of those he represented; (3) an introduction to postBrown present-day problems in metropolitan educational systems, including Nashville’s; (4) a brief acknowledgement of Houton’s extraordinary undertaking; and (5) a list of additional sources of information not provided in attached materials with respect to (1) Houston and (b) present-day post-Brown issues. Plessy in a nutshell. Plessy v. Ferguson, 163 U.S. 537 (1896) held that distinguishing between AfricanAmericans and whites, and the enforced separation of those races, did not violate the Equal 1 Protection Clause so long as in maintaining such distinctions all were treated equally. Plessy’s holding aside, the rationale of Plessy reflected much more deep-seated legal, social, political, and perceptional problems that Houston faced in his campaign to change the law. According to the Court, plaintiffs’ action was bottomed on two serious misunderstandings. First, the plaintiffs’ belief that the “enforced separation of the two races stamps the colored race with the badge of inferiority,” was, in fact, a figment of plaintiffs’ imaginations. 163 U.S. at 551. There was nothing in the act suggesting the required racial separation was intended to convey that African-American’s were inferior, and such a construction only existed “because the colored race chooses to put that construction upon it.” Id. Second, plaintiffs misunderstood what they could accomplish legally, incorrectly and naively assuming that social prejudices may be overcome by legislation, and that equal rights cannot be secured to the negro except by an enforced commingling of the two races. We cannot accept this proposition. If the two races are to meet upon terms of social equality, it must be the result of natural affinities, a mutual appreciation of each other's merits, and a voluntary consent of individuals. Id. To be clear, said Plessy: Legislation is powerless to eradicate racial instincts, or to abolish distinctions based upon physical differences, and the attempt to do so can only result in accentuating the difficulties of the present situation. If the civil and political rights of both races be equal, one cannot be inferior to the other civilly or politically. If one race be inferior to the other socially, the constitution of the United States cannot put them upon the same plane. Id. at 551-52. Plessy in historical context and Houston’s Sisyphean task It is difficult to read Plessy without wincing. It was the Court, not plaintiffs who were naïve; and, in fact and in law, African-Americans had no choice with respect to the badge they wore from the outset. Contrary to Plessy, it was not their decision to make; nor did they, being human beings, have much freedom in choosing how to feel . . . or to perceive. 1 Moreover, the 1 Authority for the proposition that individual and groups are damaged by actions and words which demean them, while undoubtedly extensive, is beyond the scope of the team’s charge. In the trial court in Brown, for example, Kenneth Clark demonstrated the disturbing fact that when asked to choose between a white and black doll with respect to their preferences, African-American children chose the white doll. The effect of being demeaned or ridiculed is, quite frankly, an experience that most have in life, and one that the Plessy Justices could not reasonably have been insensitive to as people. That feelings of lack of self-worth and humiliation can be created by disparaging word and actions is almost common sense. As Lyndon Johnson responded when asked about the moral necessity of the 1964 Civil Rights Act “A man has a right not to be insulted in front of his children.” David 2 condescending lecture to plaintiffs on the fecklessness of attempting to eradicate “racial instincts” and to engender peace and love in the hearts of all ignored not only African-American history, but what the lawsuit meant. African-Americans had been buried under constitutional jurisprudence, federal laws, state and federal laws that enabled, if such laws did not encourage the uncivilized, if not barbaric treatment of men, women, and children of color. The history and forces that Plessy ignored were the barriers to Houston’s success, and the recognition of both the rights and human dignity of those whom he represented. Looking back, the obstacles Houston faced appear insurmountable. It is difficult to understand how they did not appear so to Houston, or how he decided where to start in changing the world for the better, not just for his clients, but for us all. The following crude and grossly inadequate “history” attempts to identify a few of the formidable forces Houston faced, not only to refresh recollections, but to underscore Houston’s achievements. So, when African-Americans arrived in this country in 1619, they did so as slaves . . . chattle. At the time of the discussion leading to the adoption of the Constitution, which doesn’t expressly mention slavery, the status of African-Americans and slavery were hotly contested, incorporated in one way or another in Art. I, §§2 cl. 3 and 9 cl.1 and Art. IV, §2 cl. 3. AfricanAmericans, by in large, remained chattle. The two most contentious constitutional compromises proved to be those related to Art. 1, §9 cl.1, limiting the expansion of slavery, and Art. IV, §2 cl. 3, which basically prevented the state and federal courts from recognizing the independence, individual dignity, and rights of slaves who had somehow made it to freedom. From the outset of this nation, the moral and legal issues presented by Art. IV, §2 cl. 3 to the courts were gutwrenching, and often times, as in Dred Scott and Plessy among many other state and federal court decisions¸ courts were found wanting, at best. See Robert M. Cover, Justice Accused: Antislavery and the Judicial Process (Yale University Press 1975). To borrow from Langston Hughes, from the founding of this country through the onset of the civil war, the dreams of African-Americans as citizens of this country were deferred, with tragic consequences for us all. In Dred Scott v.Sandford, 60 U.S. (19 How.) 393 (1856), Scott, a slave, filed an action in Missouri seeking his freedom and prevailed, only to lose in in the United States Supreme Court. Chief Justice Roger Taney put the question before the Court in Scott as: Bromwich, Politics by other Means: Higher Education and Group Thinking at 157 (Yale Univ. Press 1994). Certainly, this would extend to the day to day indignities to which African-American parents and children were exposed, such as having to cross the street for a white person on the sidewalk, and explaining to a child why this was so; being seated in a special section of a bus or movie theater, or explaining why this was so; being unable to enter public buildings, or being required to do so through separate entrances, or being unable to enter restaurants or drug stores or to sit at lunch counters, and on and on. See generally Patricia Williams, Seeing a Color-Blind Future: the Paradox of Race, (Farrar, Straus & Giroux 1998). To the extent people, including African-Americans, are adversely affected by being slighted, humiliated, or demeaned in day-to-day encounters, presumably statutes, ordinances, rules, and regulations that officially require, promote or endorse such discrimination by governments and communities are more pernicious. 3 Can a negro, whose ancestors were imported into this country, and sold as slaves, become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights, and privileges, and immunities, guarantied by that instrument to the citizen? One of which rights is the privilege of suing in a court of the United States in the cases specified in the Constitution. 60 U.S. at 403. In holding that Scott had no privilege of citizenship, and consequently no privilege to invoke the jurisdiction of the federal courts because he was not a member of the political community of the United States, the Supreme Court conducted an extensive historical and legal review including investigating the status of African Americans that prevailed “in the civilized and enlightened portions of the world at the time of the Declaration of Independence.” Taney concluded that: They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold, and treated as an ordinary article of merchandise and traffic, whenever a profit could be made by it. This opinion was at that time fixed and universal in the civilized portion of the white race. It was regarded as an axiom in morals as well as in politics, which no one thought of disputing, or supposed to be open to dispute; and men in every grade and position in society daily and habitually acted upon it in their private pursuits, as well as in matters of public concern, without doubting for a moment the correctness of this opinion Id. at 407 (Emphasis added). Taney’s analysis of the circumstances of African-Americans under state law painted an even less rosy picture: The legislation of the States therefore shows, in a manner not to be mistaken, the inferior and subject condition of that race at the time the Constitution was adopted, and long afterwards, throughout the thirteen States by which that instrument was framed; and it is hardly consistent with the respect due to these States, to suppose that they regarded at that time, as fellow-citizens and members of the sovereignty, a class of beings whom they had thus stigmatized; whom, as we are bound, out of respect to the State sovereignties, to assume they had deemed it just and necessary thus to stigmatize, and upon whom they had impressed such deep and enduring marks of inferiority and degradation. 4 Id. at 416 (Emphasis added). Based on the decision in Dred Scott and Taney’s rendition of the historical view of the status of blacks, it seems reasonable to conclude that at the time of the civil war, things were not going all that well for African-Americans. While the post-civil war enactment of Amendments 13, 14, and 15 was intended by some as a new day - a declaration of equality under law for all persons - these constitutional amendments didn’t work out all that well for African-Americans either. . . or at least for a long, long time. Indeed, there were many who did not support these amendments. And many of those were in positions of power in federal, state and local governments. For example in his 1867 annual address to Congress, President Andrew Johnson said that African-Americans had “less capacity for government than any other race of people," that they would "lapse into barbarism" if left to their own devices, and that giving them the vote would result in a "tyranny such as this continent has never yet witnessed." See Lynching in America: Confronting the Legacy of Racial Terror at 7 (EJI 2015: Report Summary) (Lynching). Like the decades from this country’s inception to the civil war, the time from the civil war up to Plessy, and for decades after Plessy was decided, the hope of African-Americans for individual dignity and political and social equality was deferred: the raisin in the sun blistered, boiled, and scabbed over. Historical support for this conclusion would fill the wing of a library. A few examples must suffice. Between 1880 and 1940, lynching of African-American men, women, and children peaked. Lynching at 3. Between 1877 and 1950, four years before Brown was decided, there were 3959 lynchings of African-Americans in 12 Southern states, many of which were tolerated by state and federal officials. Lynching 3, 4-5. Doubtless some were sponsored by local governmental officials. From approximately 1932 to 1972, the United States Public Health Service, including physicians with Ivy League educations, local physicians, state health departments, and even draft boards conducted an experiment with African-American sharecroppers to “study” what would happen if men (and their families) were not treated for syphilis. See James Jones, Bad Blood: The Tuskegee Syphillis Experiment (N.Y. Free Press1981). Participants were induced to participate by the offer for “free treatment,” along with hot meals during follow-up visits. The men were not told that they had syphilis, but that they had “bad blood.” They were falsely told that they were being treated, when they were not. The wives and children of the men were never told. And those who survived for 25 years, and many did not, were given a certificate, personally signed by the United States Attorney General, thanking them for their participation and offering the opportunity for funeral payments of up to $50 in return for a signed consent to have an autopsy performed. When the study surface, one physician said, “there was no racial side to this. . . . It just happened to be in a black community.” H. Jack Geiger, “An experiment with lives” New York Times Section 7, p. 9 June 21, 1981)2 Hmm. 2 See https://www.nytimes.com/books/98/12/06/specials/jones-blood.html 5 True to Langston’s Hughes’ mordant poetic prediction, in the late 1950’s and 1960’s the deferred dreams of millions exploded. Murders of civil rights workers and those in sympathy skyrocketed; churches were bombed, civil rights and children killed; sanctuaries of those in sympathy were bombed or razed by fire; and so on . . . and so on. See, e.g., Melissa Fay Greene, The Temple Bombing (Da Capo Press ed. 1996). To be sure, much of the explosion of violence in the civil rights movement occurred after the decision in Brown and after Houston had died. But psychological and physical violence, manifestations of hatred and contempt, were the life blood of segregation. Most certainly Houston and his associates experienced personal fear and the threat of imminent violence, as for example, by lawyers in the campaign having to be spirited into and out of southern courthouses, in the trunks of cars, in the dark of night. And the plain fact is that we are all awash in history, centuries of it, if not millennia. There is no escaping it. See, e.g., Charles Taylor, A Secular Age (Belknap Press 2007); see also Robert Bellah, Religion in Human Evolution (Harvard 2011). Thus, the philosophy, theology, government, social structure, technology, literature, poetry, music, science, religious beliefs, and cosmology of the past affect each of us as we walk through life in countless perceptible and imperceptible ways, in virtually everything we do. Houston was no exception. Nor were African-Americans. It is for this and many other reasons that Plessy was so off base; and why Houston faced the impossible task of moving unmovable mountains. See them big plantations burning Hear the cracking of the whips Smell that sweet magnolia blooming See the ghosts of slavery ships. I can hear them tribes a-moaning Hear that undertaker’s bell Nobody can sing the blues Like Blind Willie McTell. Bob Dylan, Blind Willie McTell. Brown redux. For many reasons, Brown did not prescribe a remedy. Its direction that schools eliminate segregation “with all deliberate speed,” was Delphic. The problems faced by those responsible for carrying out the Supreme Court’s direction were complex, even for those who sought to do so in good faith and who worked with those who were in sympathy or agreement. Sadly, then, postBrown litigation across the country continued for decades, as did the all-too-often failed attempts 6 by state and local governmental officials to provide equal educational opportunities for AfricanAmerican children. Then, beginning in the early 1990’s the Supreme Court said, for good reasons as well as bad, that federal courts needed to get out of the business of overseeing the implementation of school desegregation plans. Thus, when a school system could demonstrate that it had abandoned the dual system of intentional segregation, the courts were to declare the system “unitary,” and dismiss the litigation. See Freeman v. Pitts, 503 U.S. 467, 487 (1992). Without discussing the wisdom of Freeman, it is a fact beyond principled debate that intentional discrimination that affected schools systems’ ability to provide equal educational opportunities for African-American children arose from other sources; school systems lacked the authority or ability to address such sources; and they also lacked the resources to properly identify causes, much less provide a remedy for the inequalities in education for students that were aggravated by these other sources. With respect to the significantly deficient performance of African-American children, children of color, and children from economically deprived homes, evidence in metropolitan districts across the country decades after Brown indicates that the schools are “resegregating”3 although not in a way that is or was remediable under the legal formulae arising out of Brown. The causes for this “resegregation” and the continuing inability of state and local officials to meaningfully address it are manifold. The experience of the Davidson and Metropolitan School system is illustrative of problems across the county. And the facts are more than midly troublesome for those here and elsewhere.. In 1956, shortly after Brown, Kelley v. Bd. of Educ. of City of Nashville, was filed in district court in Nashville. See Kelley v. Bd. of Educ. of City of Nashville, 139 F.Supp. 578 (M.D. Tenn. 1956) (per curiam) (three-judge panel). In 1998, 42 years later, the federal district court declared Metro’s school system unitary. During that 42 year period, ink was spilled by the barrel; issues were hotly contested; and, perhaps, if not too much of a stretch, cooperation was not the watchword through the decades. See Kelley v. Bd. of Educ. Of City of Nashville, Davidson Co., Tennessee, 270 F.2d 209 (6th Cir. 1959); Kelley v. Metro. Co. Bd. of Educ. of Nashville and Davidson Co., Tennessee, 293 F.Supp. 485 (M.D. Tenn. 1968); Kelley v. Metro. Co. Bd. of Educ. of Nashville and Davidson Co., Tennessee, 317 F.Supp. 980 (M.D. Tenn. 1970); Kelley v. Metro. Co. Bd. of Educ. of Nashville and Davidson Co., Tennessee , 436 F.2d 856 (6th Cir. 1970); Kelley v. Metro. Co. Bd. of Educ. of Nashville and Davidson Co., Tennessee, 463 F.2d 732 (6th Cir. 1972) (given deliberate segregation Bd had obligation to take into account population shifts in presenting a plan for a unitary system); Kelley v. Metro. Co. Bd. of Educ. of Nashville and Davidson Co., Tennessee, 372 F.Supp. 528 (M.D. Tenn. 1973); Kelley v. Metro. 3 Language too often fails, as Betrand Russell, Ludwig Wittgenstein and others have made so clear. It fails here, too, because the notion of segregation arises from legal constructs made useful in Brown, but that have become increasingly less serviceable in the 21st century. Although “segregation” is not the best or most precise descriptor, it must serve here for this cursory review. 7 Co. Bd. of Educ. of Nashville and Davidson Co., Tennessee, 372 F. Supp. 540 (M.D. Tenn 1973); Kelley v. Metro. Co. Bd. of Educ. of Nashville and Davidson Co., Tennessee, 479 F.Supp. 120 (M.D. Tenn. 1979); Kelley v. Metro. Co. Bd. of Educ. of Nashville and Davidson Co., Tennessee, 479 F.2d 810 (6th Cir. 1973) (aff’g Judge Morton’s grant of motion disqualify based on continuing responsibility to administer equitable decree which he had entered aff’d); Kelley v. Metro. Co. Bd. of Educ. of Nashville and Davidson Co., Tennessee, 492 F.Supp. 167 (M.D. Tenn. 1980); Kelley v. Metro. Co. Bd. of Educ. of Nashville and Davidson Co., Tennessee, 511 F.Supp. 1363 (M.D. Tenn. 1981); Kelley v. Metro. Co. Bd. of Educ. of Nashville and Davidson Co., Tennessee, 687 F.2d 814 (6th Cir. 1982) (aff’g in part and rev’g in part 511 F.Supp. 1363); Kelley v. Metro. Co. Bd. of Educ. of Nashville and Davidson Co., Tennessee, 558 F.Supp. 468 (M.D. Tenn. 1983); Kelley v. Metro. Co. Bd. of Educ. of Nashville and Davidson Co., Tennessee, 572 F.Supp. 317 (M.D. Tenn. 1983) (school board’s plan approved over 25 years after action commenced); Kelley v. Metro. Co. Bd. of Educ. of Nashville and Davidson Co., Tennessee, 615 F.Supp. 1139 (M.D. Tenn. 1985) (injunction mandating that the State desist from obstructing or refusing to participate in desegregation plan); Kelley v. Metro. Co. Bd. of Educ. of Nashville and Davidson Co., Tennessee, 773 F.2d 677 (6th Cir. 1985)(en banc); Kelley v. Metro. Co. Bd. of Educ. of Nashville and Davidson Co., Tennessee, 836 F.2d 986 (6th Cir. 1987) (rev’g 615 F.Supp. 1139). Fourteen years after the Metro schools system was declared unitary, in 2012, Judge Sharp rendered an opinion in Spurlock v. Metro. Govt. of Nashville and Davidson Co. et al., No. 3:09cv-00756, 2012 WL 3064251 (M.D. Tenn. Jul. 27, 2012), aff’d sub nom Spurlock v. Fox, 716 F.3d 383 (6th Cir.), cert. denied 134 S. Ct. 436 (2013). Plaintiffs lost. The Sixth Circuit affirmed. Yet, in the course of his opinion Judge Sharp observed many, troublesome deficiencies with respect to individual schools and the education attainments of AfricanAmerican children, those of color, and those from economically deprived families. In the course of doing so, Judge Sharp stated that: Despite the rhetoric of the School Board and administrators about making every school in the District a good school, the reality is that many District schools are poor schools and have been that way for a considerable amount of time. Over the last decade, MNPS has obtained consistently poor marks in the area of student performance, an outcome that has disproportionately affected African–American students in the Pearl–Cohn Cluster. Spurlock, 2012 WL 3064251, at *17. Judge Sharp went on to say that: The benchmarks consider test results in math and reading, as well as graduation and attendance rates. . . . In terms of difficulty, Tennessee's benchmarks rank forty-sixth out of the fifty states. . . . Despite these relatively lenient benchmarks, MNPS has repeatedly fallen short. . . . . MNPS was one of the first two districts in Tennessee to reach “Corrective Action” status. 8 Id. at *19 (record citations omitted). Judge Sharp concluded after extensively reviewing the record evidence and the studies pointing to some of the sources of the patent, palpable defects in the school system, that there was nothing he could do. The Court has surveyed the Supreme Court's jurisprudence and social science literature to make the following point: unfortunately, the big-picture problems confronting public education in Nashville are beyond the scope of the question presented for the Court's resolution in this case. **** The Court does not have the authority, however, to integrate Nashville's neighborhoods either by income or by race, nor is the Court empowered to compel academic improvement among students from low-income families. Indeed, the Supreme Court has made clear that it is not even the Court's responsibility to ensure the racial integration of Nashville's schools in perpetuity Id. at *30. Nashville, Tennessee, including the surrounding metropolitan area, is one of the most prosperous communities in the United States. It is the center of State government. Yet the educational system is failing significant numbers of children sixty years after Brown. Few, if any, of the parents who live in the area do not deem the welfare of their children to be their paramount concern. And, while many of those parents can afford to take their children out of the public school system, or afford to live in an area where there are good public schools, many more have no such choice. So, they are forced to watch their children flail and fail in an educational system that may in fact work against them. Both the United States District Court and the United States Court of Appeals for the Sixth Circuit have said that the law provides these parents and their children no hand up. Yet, as complex as the problems facing Metro’s educational system are, they do not begin to mirror the impossible barriers that Houston faced when he started his campaign. Like Houston, we can identify the sources of the problem with unequal educational. Like Houston, we can aggressively address the issues. To borrow from Brown we in the community should do so, and help to do so, with all deliberate speed. It is a disservice to the memory of Houston, and more importantly to those whom he represented, to proceed otherwise. A word about Charles Hamilton Houston. The program will review Charles Houston and his strategy to overturn Plessy. Much about this man, however, cannot be compressed into a short program. The team, in the course of investigating Houston, learned considerably more that it is worth knowing. The most useful 9 compilation of what he and others did is contained in Richard Kluger’s epic history, Simple Justice: The History of Brown v. Board of Education and Black America’s Struggle for Equality (Vintage 2004). It is a book anyone interested in the past history of racial educational inequality, or the present disparities, should read There is something else that the team learned about Houston that approaches the ineffable. That is, while he was certainly a legal genius, and a legal strategist and technician beyond compare, he was also morally and physically courageous in ways difficult to imagine. In these senses, in reading about Houston and his goal, it was hard not to make comparisons to the mythological Prometheus, not with respect to Prometheus’ tragic end, as depicted by Aeschaylus’s, or the somewhat less tragic end Shelly portrayed over 2000 years later, but with respect to the extraordinary undertaking of both. Like Prometheus’ challenge to the gods, Houston’s campaign against duly constituted authorities, a culture of racism deeply imbedded in the fabric of this county, and constitutional decisions that were openly demeaning to African-American citizens was an impossible undertaking on its face. Like Prometheus, Houston somehow succeeded despite impossible odds. Most importantly, like Prometheus, who challenged the gods on behalf of humanity, Houston sought to improve the lot of all African-Americans in the country, if not all citizens. Houston was Promethean in the best sense of the metaphor. To the extent that each of us lives in a much better world because of Charles Hamilton Houston, we have a duty to ensure that his aim is accomplished, here in Metro. Doing so presents much less formidable obstacles and requires significantly less courage. Most importantly, it would provide a significant pool of talented, creative, hopeful children whose abilities are presently being squandered for no purpose whatsoever. Materials. Charles Hamilton Houston In addition to attachments, see: Leland Ware, “Setting the State for Brown: The Develoment and Implementation of the NAACP’s School Desegregation Campaign, 1930—1950,” 52 Mercer L.Rev. 631 (2001) Genna McNeil, “Before Brown: Reflections on Historical Context and Vision,” 52 Am. U. L.Rev 1431 (2003) Leland Ware, “Educational Equity and Brown v. Board of Education: Fifty Years of School Desegregation in Deleware,” 47 How. L.J. 299 (2004) Kenneth Mack, “Rethinking Civil Rights Lawyering and Politics in the Era before Brown,” 115 Yale L.J. 256 (2005) 10 Post-Brown, Present Day Educational Issues In addition to attachments, see: http://www.thisamericanlife.org/radio-archives/episode/562/the-problem-we-all-live-with (failed metropolitan desegregation efforts in Missouri and accidental success) Catherine E. Veninga. Road scholars: School busing and the politics of integration in Seattle. Geography PhD Dissertation, University of Washington, 2005. University of Washington Dept. of History 2014 Dissertations4 Ansle Erickson, Making the Unequal Metropolis: School Desegregation and Its Limits (Available from Amazon March 2016) (focus on Nashville) 4 http://depts.washington.edu/history/graduate-studies/recent-dissertations 11