Seq: 1
Anders Walker *
In 1955, Metro-Goldwyn-Mayer released a controversial film about juvenile delinquency entitled Blackboard Jungle. Georgia Governor Ernest
Vandiver subsequently used the film as a metaphor for what would happen
to southern schools were Brown v. Board of Education enforced, marking
the beginnings of a much larger campaign to articulate southern resistance
to integration in racially neutral, cultural terms. Taking Blackboard
Jungle as a starting point, this Essay recounts the intersection between discourses of delinquency and desegregation at mid-century, showing how both
civil rights groups and segregationists alike drew from popular culture and
developmental psychology to advance their constitutional agendas.
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
MID-CENTURY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
II. THE NAACP RESPONSE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
III. THE EXTREMIST RESPONSE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
IV. THE MODERATE RESPONSE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
In 1955, Metro-Goldwyn-Mayer released a controversial film about
juvenile delinquency entitled Blackboard Jungle.1 Set in an integrated
* Assistant Professor, Saint Louis University School of Law, Ph.D. Yale University
2003; J.D./M.A. Duke University 1998; B.A. Wesleyan University 1994. I would like to
thank Tomiko Brown-Nagin and the participants of 50 Years After the Sit-Ins: Reflecting
on the Role of Protest in Social Movements and Law Reform Conference at the University
of Virginia (Jan. 28–30, 2010). I would also like to thank Sarah Barringer Gordon, Ariela
Gross, Carol Rose, Naomi Mezey, Ariela Dubler, and the participants of the 2009 Law &
Humanities Junior Scholars Workshop at the Georgetown Law Center for comments and
criticism. Finally, credit goes to James W. Ely, Jr. for sharing his work on the Danville
demonstrations of 1963, as well as participants in the Washington University in St. Louis
School of Law’s Regional Junior Faculty Colloquium and the Saint Louis University School
of Law workshop series, particularly Joel Goldstein, Eric Miller, Matt Bodie, Sam Jordan,
and Michael Korybut. Twanna Hill, Alex Shively, Annemarie Schreiber, Edward Reilly, and
Scott Yackey provided helpful research assistance.
1. Blackboard Jungle (Metro-Goldwyn-Mayer 1955); see also Dan Leopard, Blackboard
Jungle: The Ethnographic Narratives of Education on Film, Cinema J., Summer 2007, at
24, 24 (arguing Blackboard Jungle serves as “conceptual template for examination of
otherness and authenticity as expressed through the narrative tropes of the arrival scene”);
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[Vol. 110:1911
slum high school, the picture told the story of Jack Dadier, a returning
World War II veteran assigned the task of transforming a band of unruly,
knife-wielding teenagers into model students.2 Though Dadier succeeds
with the help of a young Sidney Poitier, Georgia Governor Ernest
Vandiver used the movie as a negative symbol of what integrated schools
would become in a speech to state legislators in 1960, arguing that if
schools were forced to integrate as required under Brown, “an environment of switchblade knives, marijuana, stabbings, rapes, violence and
blackboard jungles” would emerge across the South.3 Interested in proving this to be true, United States Representative and future Mississippi
Governor John Bell Williams organized a formal inquiry into delinquency
in desegregated schools in Washington, D.C., concluding that integration
heightened racial tension and accelerated juvenile crime.4
Though historians have documented the moral panic surrounding
juvenile delinquency in the 1950s, few have chosen to look at intersections between discourses of delinquency and desegregation at midcentury.5 Yet, such intersections cast new light on at least three imporBeth McCoy, Manager, Buddy, Delinquent: Blackboard Jungle’s Desegregating Triangle,
Cinema J., Fall 1998, at 25, 26 (“Blackboard Jungle performed a representational sleight of
hand that enabled a particular vision of integration to emerge.”).
2. Blackboard Jungle (Metro-Goldwyn-Mayer 1955). Blackboard Jungle was the first
film to include rock and roll in its soundtrack. James Gilbert, A Cycle of Outrage:
America’s Reaction to the Juvenile Delinquent in the 1950s, at 183 (1986).
3. Bruce Galphin, Vandiver Vows to Stop Atlanta “Surrender” as 2,000 Cheer at Rally,
Atlanta Const., Feb. 9, 1960, at 11.
4. Subcomm. to Investigate Pub. Sch. Standards and Conditions, and Juvenile
Delinquency in the Dist. of Columbia, H. Comm. on the Dist. of Columbia, 84th Cong.,
Rep. on the Investigation of Public School Conditions 44–46 (Comm. Print 1957)
[hereinafter Public School Conditions Report].
5. For representative works on delinquency, see generally Gilbert, supra note 2
(exploring debates over relationship between rise of mass media and juvenile delinquency
in 1950s); Grace Palladino, Teenagers: An American History (1996) (describing rise of
teenagers as a discrete societal entity and adults’ increasingly acute fears over delinquency
beginning in 1940s); Harrison Salisbury, The Shook-up Generation (1958) (exploring
causes and consequences of rise of violent juvenile activity in mid-twentieth century).
Scholars who mention intersections between delinquency and desegregation in passing
include Susan K. Cahn, Sexual Reckonings: Southern Girls in a Troubling Age 301 (2007)
(arguing desegregation actually discouraged teenagers from “breaking the social
conventions that structured their world”), Pete Daniel, Lost Revolutions: The South in the
1950s, at 183–84 (2000) (discussing ways integration triggered general fear over collapsing
morals of youth), and Allison Graham, Framing the South: Hollywood, Television, and
Race During the Civil Rights Struggle 94–95 (2001) (discussing resistance to integration
and its effect on inadequate education and antisocial tendencies). Perhaps the foremost
authority on massive resistance to integration, Numan V. Bartley, The Rise of Massive
Resistance: Race and Politics in the South During the 1950’s (1969), makes no mention of
delinquency. Nor does Michael J. Klarman discuss delinquency in his magisterial From Jim
Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality (2004).
Perhaps most remarkably, Rebecca de Schweinitz makes no mention of activists being
prosecuted as delinquents, even though she focuses on the pivotal role that minors played
in civil rights protests. See Rebecca de Schweinitz, If We Could Change the World: Young
People and America’s Long Struggle for Racial Equality 242–48 (2009) (“One of the most
Seq: 3
tant aspects of the constitutional history of the period. One, they help
show why Thurgood Marshall decided to focus on arguably dubious sociological arguments about child psychology in Brown v. Board of Education.6
Two, they suggest that popular culture became bound up in the constitutional politics of the time, as both civil rights activists and segregationists
harnessed popular outrage and fear over delinquent youth.7 Three, intersections between delinquency and desegregation indicate that Brown
not only engendered resistance, but also spurred unanticipated transformations in state law, contributing to a more comprehensive—and intrusive—juvenile justice system.8
To illustrate, as fears of delinquency spiked after Brown, segregationists split into two camps. Extremists used delinquency to argue that the
Supreme Court should be met with massive resistance.9 Moderates, by
contrast, sponsored state legislation instituting psychiatric programs, detention centers, and home welfare services to deal with the delinquency
threat.10 Such moderates, like Virginia’s Kathryn Stone, treated Brown
not as an affront so much as an opportunity, a catalyst for state formation,
independent of civil rights.11 Recovering this aspect of Brown is imporremarkable stories about the movement . . . is that regardless of adult activity and in spite
of adult inactivity, young people identified with and participated in the movement
throughout the South.”).
6. Few constitutional scholars questioned the Court’s citation to sociological evidence
more forthrightly than Herbert Wechsler. See Herbert Wechsler, Toward Neutral
Principles of Constitutional Law, 73 Harv. L. Rev. 1, 32–34 (1959) (querying whether
Brown required courts to determine harm caused by school segregation in individual
school districts); see also Jack M. Balkin, Rewriting Brown: A Guide to the Opinions, in
What Brown v. Board of Education Should Have Said 44, 52 (Jack M. Balkin et al. eds., 2001)
(noting citation to sociological evidence “implicitly suggested that if the teachings of
modern psychology were different, so would be the legal outcome”). For a discussion of
problems with the evidence cited in Brown, see Daryl Michael Scott, Contempt & Pity:
Social Policy and the Image of the Damaged Black Psyche, 1880–1996, at 123–24 (1997)
(noting flaws in studies and difficult logical leap required to assert causal link between
segregation and self-hatred).
7. To date, studies of popular culture in the 1950s fail to recognize any constitutional
link between desegregation and popular culture. See generally Daniel, supra note 5
(focusing on ways rock and roll threatened segregation); Robert Gordon, It Came From
Memphis (1995) (describing development of music in Tennessee and its impact on racial
divide); Greil Marcus, Mystery Train: Images of America in Rock ’n’ Roll Music (4th ed.
1997) (exploring rise of musicians such as Elvis in context of racially segregated society).
8. Neither Numan V. Bartley nor Michael J. Klarman, the foremost authorities on the
southern response to Brown, mention antidelinquency measures. See Bartley, supra note
5, at 67–81 (describing Southern political efforts to counteract Brown but failing to note
antidelinquency measures); Klarman, supra note 5, at 344–64 (exploring Brown’s direct
and indirect effects but failing to note effect of spurring antidelinquency laws).
9. See infra Part III (describing extremists’ reaction to use of statistics and evidence in
Brown and subsequent manipulation of statistics by extremists to encourage massive
10. See infra Part IV (explaining moderates’ belief that delinquency was result of
social and cultural factors, best addressed by laws and supportive programs).
11. See infra Part IV (detailing Stone’s approach to use fear of integration to gain
support for state-sponsored youth projects).
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[Vol. 110:1911
tant not simply because it has gone unrecognized, but because it provides
us with a new paradigm for understanding the ruling and, perhaps, the
workings of American federalism itself. Rather than simply a civil rights
milestone or “hollow hope,” as Gerald Rosenberg has bemoaned, Brown
reemerges in the delinquency context as a catalyst for institutional
change unrelated to education, a modernizing trigger that provides clues
about the way American federalism encourages state transformation.12
Indeed, Virginia’s expansion of reform schools due to fears generated by
Brown indicates that the origins of modern day problems like the schoolto-prison pipeline may lie in the Court’s civil rights rulings half a century
To explain how this is so, this Essay will proceed in five parts. Part I
recounts the moral panic over delinquency in the 1950s, describing how
it manifested itself in popular culture and social science. Part II discusses
the manner in which the NAACP sought to harness popular concerns
over delinquency in its campaign against Jim Crow, revealing a realm of
cultural politics not previously associated with Brown. Part III shows how
southern extremists countered the NAACP by using cultural portrayals
and scientific studies of delinquency as a modality for combating the
moral claims of civil rights groups. Part IV discusses the legislative impact
that the delinquency scare had on the South, focusing on efforts by
moderates to expand and improve state services to children. Part V demonstrates how such responses were used to disrupt the student sit-ins of
1960, showing how well-intentioned measures found themselves in the
service of reactionary trends, a lost chapter in the history of civil rights.
Concerns over juvenile delinquency and crime did not begin in the
1950s. As early as the 1920s, parents worried about America’s “flaming
youth” being corrupted by jazz, liberal attitudes toward sex, and illegal
alcohol.13 While such fears continued into the 1940s, a constellation of
forces aligned to elevate concerns over delinquency in the 1950s.14 The
12. For discussion of Brown as a civil rights milestone, see Jack Greenberg, Crusaders
in the Courts: How a Dedicated Band of Lawyers Fought for the Civil Rights Revolution
197 (1994) (“In what may well have been the most important Supreme Court decision of
the century, maybe ever, we won unanimously.”). For Brown as a “hollow hope,” see Gerald
Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? 71 (1993) (“In
terms of judicial effects, then, Brown and its progeny stand for the proposition that courts
are impotent to produce significant social reform.”).
13. See Gilbert, supra note 2, at 3 (discussing concerns during 1920s that youth would
be corrupted by popular culture). Fears of juvenile delinquency date even further back,
into the early nineteenth century. See, e.g., Thomas J. Bernard, The Cycle of Juvenile
Justice 58–80 (1992) (describing establishment of first juvenile institution in New York in
14. See Gilbert, supra note 2, at 13–14 (describing moral panic over juvenile
delinquency in 1950s).
Seq: 5
first of these was an actual increase in the rate of juvenile crime.15 To
take just one example, the Federal Bureau of Investigation reported that
juvenile delinquency rose 55% between 1952 and 1957.16 Though such
data failed to distinguish between status crimes, like underage drinking
and violent crimes,17 the data still caused considerable alarm, partly due
to the emergence of a newly assertive “teenage culture” that seemed to
coincide with the spike in lawbreaking.18 This teenage culture emerged
as a separate entity from adult culture in the 1950s and derived from
several sources, among them the end of the high school as an elite institution.19 As late as the 1930s, only 50% of working class families sent their
children to high school, a number that rose to 90% by the early 1960s.20
Once the emblem of a “privileged, upper-class” life, high school quickly
became a “normal” part of teenage life, a place where teenagers forged
their own communities, turning “to their friends or to magazine columns” for advice more often than to their parents.21 “Youth-oriented
marketers” actively nurtured this cultural insularism, developing “specialized teenage products, including clothes, cosmetics, shoes, skin care
products, movies, records,” and so on, all of which teenagers could afford
thanks to postwar “economic prosperity” and a national surge in teen employment.22 With the money they earned at after school jobs, teenagers
found themselves able to purchase not just cosmetics but other consumer
goods, including automobiles, granting them even more mobility and
freedom.23 An entire entertainment culture followed, one that generated uniquely teenage celebrities like Alan Freed, Bo Diddley, Lavern
Baker, Marlon Brando, and James Dean.24
Stars like Brando and Dean made names for themselves playing delinquents, pouring gasoline on popular fears of delinquency generally.25
15. See Palladino, supra note 5, at 161 (providing FBI statistics indicating rise in crime
rates among teenagers).
16. Id.
17. Id.
18. Gilbert, supra note 2, at 19; see also Cahn, supra note 5, at 212 (“A teenage
culture . . . grew stronger and more institutionally rooted in the decade after the war.”).
19. For mention of teenage culture as separate from adult culture, see Gilbert, supra
note 2, at 19. For a discussion of the significance of high school itself as a cultural
institution, see Palladino, supra note 5, at 5–15.
20. Gilbert, supra note 2, at 18.
21. Palladino, supra note 5, at 98–99.
22. Id. at 101–02. For a discussion of economic prosperity, see id. at 101. For a
discussion of the spike in teen employment rates in the 1950s, see Gilbert, supra note 2, at
23. Gilbert, supra note 2, at 22; Palladino, supra note 5, at 101.
24. See Gilbert, supra note 2, at 175 (discussing emergence of movies targeted
specifically to teens); Palladino, supra note 5, at 119–24 (discussing how “teenage market
for rock ‘n’ roll became big business”).
25. See, e.g., Palladino, supra note 5, at 159 (describing Rebel Without a Cause star
James Dean’s portrayal of “a handsome, tormented, middle-class teenager” who “lived fast,
died young, and left an exceedingly good-looking corpse”); Ronald D. Cohen, The
Delinquents: Censorship and Youth Culture in Recent U.S. History, 37 Hist. Educ. Q. 251,
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[Vol. 110:1911
For example, in 1953 Columbia Pictures released a picture entitled The
Wild One based on the true story of a motorcycle gang’s invasion of the
small California town of Hollister.26 Starring Brando, the picture depicted outright confrontations between teenage bikers and adults—including menacing shots of gang members roaring through quiet streets
on their motorcycles.27 Other films followed, including Teenage Crime
Wave, The Delinquents, Running Wild, and, perhaps most notoriously,
Blackboard Jungle.28 Set in an integrated, urban slum high school,
Blackboard Jungle dramatized the plight of Jack Dadier, a high school
teacher and World War II veteran beset by violent delinquents intent on
destroying school property, attacking administrators, and even raping
teachers.29 Only with the help of a young, stoic African American student
played by Sidney Poitier does Dadier succeed, leaving one critic wondering whether the movie was a “desirable stimulant to spread before the
One year later, MGM released Rock, Rock, Rock, a more lighthearted
film about high school life featuring a tongue-in-cheek performance by a
young Frankie Lymon singing “I’m Not a Juvenile Delinquent.”31 That
same year, Warner Brothers issued a full-color film, Rebel Without a Cause,
about an even more attractive teenager who rejects his middle class parents for his high school friends, one of whom shoots another teenager
not long after the protagonist accidentally causes the death of a rival in a
motorized game of chicken.32 Named for a 1944 study of juvenile delinquency called Rebel Without a Cause: The Hypnoanalysis of a Criminal
Psychopath, the movie starred Yale drama graduate James Dean and became an instant hit.33
Juvenile responses to media portrayals of delinquent culture like
Rebel proved troubling to many. In one of the worst examples, a teenager
in a high school in Indiana, Pennsylvania copied the stabbing portrayed
in Rebel.34 Though such crimes were rare, it became common for teenag261 (1997) (“The delinquency films were part and parcel of this fixation on fright, security,
and salvation, with sometimes adverse consequences.”); Jerold Simmons, Violent Youth:
The Censoring and Public Reception of The Wild One and The Blackboard Jungle, 20 Film
Hist. 381, 382–86 (2008) (discussing Production Code Administration’s and British
board’s criticism of violence in American films). For an excellent discussion of the
problems with FBI data on delinquency, suggesting that much of the spike had to do with
an unprecedented emphasis on status crimes, see Gilbert, supra note 2, at 66–71.
26. Gilbert, supra note 2, at 182–83.
27. Id.
28. Id. at 183; Palladino, supra note 5, at 159.
29. Gilbert, supra note 2, at 183.
30. Bosley Crowther, The Screen: ‘Blackboard Jungle,’ Delinquency Shown in
Powerful Film, N.Y. Times, Mar. 21, 1955, at 21.
31. Rock, Rock, Rock (Vanguard Productions 1956).
32. Gilbert, supra note 2, at 185–89.
33. Robert M. Lindner, Rebel Without a Cause: The Hypnoanalysis of a Criminal
Psychopath (1944).
34. Gilbert, supra note 2, at 188.
Seq: 7
ers to take over movie theaters, dancing in the aisles to rock and roll
soundtracks by artists like Bill Haley and Chuck Berry.35 The National
Congress of Parents and Teachers, the Girl Scouts, and the Daughters of
the American Revolution all denounced Blackboard Jungle. Clare Booth
Luce, America’s ambassador to Italy, became so afraid that Blackboard Jungle might compromise America’s Cold War image that she had it withdrawn from the Venice Film Festival in 1956.36
As Americans recoiled from cinematic portrayals of wild ones and
blackboard jungles, many struggled to understand the causes of youth
revolt.37 To take just a few examples, in 1954, Faber and Faber published
Lord of the Flies, a disturbing novel set on a remote island where a
stranded cohort of English school boys abandon middle class propriety
and devolve into spear-wielding savages.38 Though written by British author William Golding, the book became a bestseller in the United States,
stirring questions about the socialization and psychological development
of youth.39 Two years after the publication of Flies, for example, sociologist Benjamin Fine published 1,000,000 Delinquents, a book predicting a
dramatic spike in juvenile crime in the United States by the end of the
decade.40 That same year, Time magazine dedicated a special issue to the
problem, provocatively entitling it Teenagers on the Rampage.41 In 1957,
Cosmopolitan released an entire issue dedicated to adolescence replete
with articles like Are You Afraid of Your Teenager?.42
35. For a description of Blackboard Jungle and its impact on audiences around the
country, see id. at 183–89 and Palladino, supra note 5, at 126–27, 160.
36. These reactions are all documented by James Gilbert. Gilbert, supra note 2, at
37. See, e.g., Sheldon & Eleanor Glueck, Delinquents in the Making: Paths to
Prevention 1–37, 169–87 (1952) (“Malformation of character—that human disorder most
difficult to understand and remedy—has all too often been accounted for by simplistic
explanations or professional dogmas or propagandistic enthusiasms.”); Negley K. Teeters
& John Otto Reinemann, The Challenge of Delinquency: Causation, Treatment, and
Prevention of Juvenile Delinquency 7 (Herbert Blumer ed., 1950) (“[M]any suggestions
[of theories of delinquency causation] are offered that have some merit but that do not
answer the question of delinquency with any degree of finality.”).
38. William Golding, Lord of the Flies (1954).
39. See William Du Bois, Books of the Times, N.Y. Times, Oct. 21, 1955, at 25 (“Man,
[Golding] reminds us, is still an animal, though he has long since left the tree tops;
civilization is really less than skin deep; in childhood and youth higher authority is all that
keeps the savage in bounds.”); James Stern, English Schoolboys in the Jungle, N.Y. Times,
Oct. 23, 1955, at BR38 (describing book as “an allegory on human society today” and a
“frightening parody on man’s return (in a few weeks) to that state of darkness from which
it took him thousands of years to emerge”).
40. Benjamin Fine, 1,000,000 Delinquents (1956).
41. See Arlene Skolnick, Embattled Paradise: The American Family in an Age of
Uncertainty 207 (1991) (“‘Teenagers on the Rampage’ was the title of a Time magazine
report on violence in the nation’s high schools.”).
42. Sumner Ahlbum, Are You Afraid of Your Teenager?, Cosmopolitan, Nov. 1957, at
40, 40–45.
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Such concerns led Tennessee Senator Estes Kefauver to form a
Senate Subcommittee to Investigate Juvenile Delinquency in 1953, eventually generating a report identifying mass culture, including pornography and drugs, to be a cause of youth crime.43 The report asserted:
In New York . . . we were informed by those who chart the
course of juvenile misbehavior that after World War II there was
a decidedly discernible trend to the use of marihuana. This was
followed by progression to the use of heroin, but in the last 3 or
4 years, sexual excesses and perversion have moved to the fore
as the complex evil with which the authorities must cope. Lamentably there are all too many sex orgies involving teen-agers
and this trend to perversion coincides definitely with the tremendous output of pornography.44
Sex orgies—and sexual deviance in general—became a focal point
of the Committee’s hearings in 1956. Of particular interest were the
paths down which children could be led to delinquency. “Doctor, could
you tell us, is there a growing tendency today toward sex deviations?”
asked the committee’s special counsel, Vince Gaughan, directing his
question to Dr. George W. Henry, professor of clinical psychiatry at
Cornell University.45 “That is my impression,” responded Henry. “From
your experience can you tell us what age group is most susceptible to
deviation?” continued Gaughan. “Adolescence,” responded Dr. Henry.46
“Can such deviation from the normal manifest itself in a number of
forms?” asked Gaughan. “Yes,” replied Henry. “Are people born with
such perversions bred in them, or must they be taught and educated
along this line?”47 “I could scarcely imagine that anyone was born with
these tendencies. There may be certain potentialities that can be trained,
but I don’t believe anybody would arrive at these various deviations unless
they had some training,” replied the Cornell psychiatrist.48
The Committee’s interest in training, and in particular the idea that
children could be trained into deviance, reflected a larger belief in the
fragile psychology of children at the time, and in particular the idea that
children could be profoundly influenced by their surroundings.49 As Dr.
43. Subcomm. to Investigate Juvenile Delinquency, S. Comm. on the Judiciary, 84th
Cong., Rep. on Obscene and Pornographic Literature and Juvenile Delinquency 8 (Comm.
Print 1956) [hereinafter Report on Obscene and Pornographic Literature].
44. Id.
45. Id. at 9.
46. Id.
47. Id.
48. Id.
49. See, e.g., Fredric Wertham, Seduction of the Innocent 2 (1953) (“Gardening
consists largely in protecting plants from blight and weeds, and the same is true of
attending to the growth of children.”); Heinz Hartmann, Psychoanalysis and
Developmental Psychology, in 5 The Psychoanalytic Study of the Child 7, 9 (Ruth S. Eissler
et al. eds., 1950) (examining how “maturational sequences underlying the intellectual or
motor achievement [of a child] may bear on a child’s ego development”); Bess Furman,
Child Character Put Up to Parents, N.Y. Times, Mar. 27, 1950, at 20 (reviewing publication
Seq: 9
Benjamin Karpman, chief psychotherapist at St. Elizabeths Hospital in
Washington, D.C. told the subcommittee: “[Y]ou can take a perfectly
healthy boy or girl and by exposing them to abnormalities you can virtually crystallize and settle their habits for the rest of their lives. If they are
not exposed to that they may develop to perfectly healthy, normal
Developmental psychology coincided nicely with the concerns of
middle-class parents. Medical authorities warned parents to be on the
alert not only for adult subjects like pornography,51 but also other media
that might taint children. Among these were television programs, children’s movies, and, perhaps most significantly, comic books.52
One social scientist in particular, a psychiatrist named Fredric
Wertham, transformed concerns over comics into nothing less than a national scandal.53 A German émigré, Wertham possessed a profound mistrust of the effects of mass culture on everyday people.54 Although he
had left Germany long before the rise of the Nazis, he, like other German
émigrés Theodor Adorno and Max Horkheimer, was alarmed at the way
in which the National Socialists employed mass culture to indoctrinate
average German people.55 The Nazis’ decision to use graphic art, the
media, and public drama to bring Germans to a frenzy of genocidal nationalism led the scientists to be suspicious of the effects of mass culture
on Americans as well.56 Consequently, as fears of juvenile delinquency
began to surge in the 1950s, Wertham focused his attention on a genre of
of pamphlet for parents that placed “emphasis always on the great importance of infancy
and the pre-school years in forming the basis of adult character”); Murray Illson, Television
Channels Now Available Present Challenge and Opportunity to Communities, N.Y. Times,
Aug. 31, 1952, at E7 (quoting U.S. Commissioner of Education as saying that television’s
“power and vitality” was well known even in its infancy and could be used by educators); C.
Wright Mills, Nothing to Laugh At, N.Y. Times, Apr. 25, 1954, at BR20 (suggesting action
should be taken against comic book manufacturers and purveyors and further studies done
to examine their influence on children).
50. Report on Obscene and Pornographic Literature, supra note 43, at 12.
51. Id. at 9–12.
52. See Dorothy Barclay, Wider Aim Asked for Child Studies: Comparative World
Surveys Urged at Parley Here by Klineberg of Columbia, N.Y. Times, June 4, 1954, at 28
(quoting Child Study Association of America spokesperson stating group was “the first . . .
to be concerned about the comics and . . . among the first to condemn vicious crime and
horror comics”).
53. See Bart Beaty, Fredric Wertham and the Critique of Mass Culture 104–66 (2005)
(explaining influence of Wertham and comic book companies’ responses).
54. See id. at 57–58 (describing Wertham’s philosophy and placing it in context of his
contemporaries’ critiques of mass culture).
55. See id. at 51, 57–58 (“Adorno and . . . other members of the . . . Frankfurt
School . . . tended to conceive of mass culture as a form of regression that would take the
United States down the road towards facism . . . .”).
56. For a classic example of Max Horkheimer and Theodor Adorno’s critique of mass
culture, see Max Horkheimer & Theodor W. Adorno, The Culture Industry:
Enlightenment as Mass Deception, in Media and Cultural Studies: Keyworks 71–101
(Meenakshi Gigi Durham & Douglas M. Kellner eds., 2001).
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[Vol. 110:1911
illustrated serial known as the crime comic.57 Crime comics, with titles
like Tales from the Crypt, Reform School Girl, and Crime Detective presented
children with sexually charged accounts of murder, rape, and torture.58
In 1954, they constituted a major portion of the 60 million copies per
month comic book market, leading Wertham to publish a book on the
subject entitled Seduction of the Innocent.59 Wertham wrote:
Even more than crime, juvenile delinquency reflects the social
values current in a society. Both adults and children absorb
these social values in their daily lives, at home, in school, at
work, and also in all the communications imparted as entertainment, instruction or propaganda through the mass media, from
the printed word to television.60
In part due to its emphasis on mass conditioning, Seduction of the
Innocent received widespread acclaim and transformed Wertham into a
popular authority not only on comic books, but on the social psychiatry
of children in general.61 For a nation seized by concern over errant
youth, Wertham gave structure to popular fears by rooting delinquency
not in nebulous forces, but in distinct, controllable causes like print media.62 As he summarized in Seduction: “You cannot understand or remedy a social phenomenon like delinquency by redefining it simply as an
individual emotional disorder. It is on the basis of such an approach,
however, that important mass influences on the child’s mind have for
years been completely overlooked.”63
Because of his interest in the effect that “mass influences” had on
children’s minds, Wertham attracted the attention of civil rights advocates. Indeed, as the next section will show, Wertham’s work garnered
him an invitation from NAACP lawyer Jack Greenberg, who hoped that
he might be able to testify in the Delaware portion of Brown v. Board
of Education. The legal system known as Jim Crow, believed Greenberg,
had a much more negative effect on African American children than
southern whites acknowledged, or even realized. To prove this in court,
however, required scientific testimony from experts who understood how
children could be negatively impacted by social phenomena, whether
they be comic books or Jim Crow laws, at a mass level.
57. See, e.g., Beaty, supra note 53, at 125 (noting during 1951 public meeting held to
discuss controlling comic books in New York, Wertham called for public health law to
restrict sale of crime comics to teens over age sixteen).
58. See, e.g., id. at 164 (describing Wertham’s attack on comic censor, noting censor
himself “was a former crime comics publisher, having released titles such as Tales of Horror
that emphasized ‘salaciously, suggestively drawn girls’”).
59. Wertham, supra note 49, at 149–50.
60. Id. at 149.
61. For a description of the popularity and influence of Wertham’s work, see Gilbert,
supra note 2, at 103–04.
62. Id. at 103.
63. Wertham, supra note 49, at 156–57.
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The importance of mass influences on the minds of children, a core
component of Frederic Wertham’s social psychiatry, was of interest not
only to parents worried about the effects that comic books had on children, but also to African Americans fighting segregation. In 1896, the
Supreme Court had ruled that segregation, as long as it was equal, injured neither blacks nor whites.64 As early as the 1930s, however, scientific evidence began to suggest that this was not the case.65 By the 1950s,
this evidence was seen as increasingly credible in the field of clinical psychiatry, partly due to Frederic Wertham’s own work in New York.66
Thanks to the support of black writers Richard Wright and Ralph Ellison,
Wertham opened a psychiatric clinic in Harlem designed to provide free
psychiatric services to African Americans in 1946.67
Called the Lafargue Clinic after Paul Lafargue, a black, Cuban-born
physician who married Karl Marx’s daughter, Wertham joined fourteen
other volunteer psychiatrists as well as twelve social workers in the basement of St. Philip’s Parish House on West 133rd Street.68 They charged
twenty-five cents per consultation, but only for those patients who could
pay. For those who could not, the consultation was free.69
In 1951, NAACP lawyer Jack Greenberg contacted Wertham to see if
he might bring black school children from Delaware to be examined at
the clinic.70 Greenberg’s request derived from a larger theory developed
by Thurgood Marshall that the best way to attack segregation was to argue
that it caused psychological harm to black children:71
I told the staff that we had to try this case just like any other one
in which you would try to prove damages to your client . . . . If
your car ran over my client, you’d have to pay up, and my function as an attorney would be to put experts on the stand to testify to how much damage was done. We needed exactly that
kind of evidence in the school cases.72
To support the theory that segregation damaged black youth, the
NAACP not only sent black children to be examined in New York, but
used Wertham as an expert witness in Belton v. Gebhart, the Delaware por64. Plessy v. Ferguson, 163 U.S. 537, 544, 551 (1896) (remarking segregation laws “do
not necessarily imply the inferiority of either race” and any inferiority is because “the
colored race chooses to put that construction upon it”).
65. See Scott, supra note 6, at 20 (noting between World Wars I and II, social
scientists could “emphasize how racial oppression inflicted damage on the black psyche”
and “many scholars who examined the black psyche discovered damage”).
66. Beaty, supra note 53, at 89.
67. Id.
68. Id. at 17.
69. Id.
70. Id. at 94–95.
71. Richard Kluger, Simple Justice: The History of Brown v. Board of Education and
Black America’s Struggle for Equality 316 (2004).
72. Id.
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tion of a series of cases that would eventually be consolidated into Brown
v. Board of Education.73 In his testimony, Wertham contended that although “the physical differences” between black and white schools in
Delaware were “not at all really material” it was nevertheless true that
“segregation in general” was “anti-educational.”74 By this he meant that
“[m]ost of the children” that he examined “interpret segregation in one
way and only one way—and that is they interpret it as punishment.”75
Whether the state of Delaware wanted to punish black children, continued Wertham, had “nothing to do with it.”76 What interested him was
“what [was] in the minds of children.”77
Though Wertham’s testimony stemmed from examinations that he
had conducted on black children at Lafargue, he incorporated his critique of mass culture and comic books into his testimony.78 Legal segregation, argued Wertham, acted like comic books in the sense that it was
an exterior factor that influenced the minds of children on a mass level.79
Many comics, continued Wertham, actually included racist themes, a
claim he supported by submitting into evidence several crime comics depicting blacks as savages.80
Though Jack Greenberg later recalled that Wertham “captivated” the
courtroom, his testimony has since been overshadowed by that of
Columbia sociologist Kenneth B. Clark, who gained notoriety by employing colored dolls to gauge the effects of racism on black children.81 Specifically, Clark presented black children with different colored dolls and
asked them which doll was more attractive. Frequently, black children
would select the white doll, indicating that even though they were black,
they had been socialized to think that white was aesthetically superior.82
73. Brown v. Bd. of Educ., 347 U.S. 483 (1954); Belton v. Gebhart, 87 A.2d 862 (Del.
Ch. 1952). For Wertham’s testimony for the NAACP, see Kluger, supra note 71, at 442–46.
74. Kluger, supra note 71, at 445.
75. Id.
76. Id.
77. Id.
78. See Gilbert, supra note 2, at 101–02 (quoting Wertham as testifying “[a]ll those
who study, for instance, juvenile delinquency know that those supra-personal factors [of
cultural corruption] have an effect, and one can make a statement about a whole group of
children through them”); see also Richard Wright, Phychiatry [sic] Comes to Harlem, Free
World, Sept. 1946, at 49–51 (describing establishment of Lafargue Clinic).
79. Gilbert, supra note 2, at 101–02.
80. Greenberg, supra note 12, at 138. For more on Wertham’s work at Lafargue, see
id. at 95–97, and Kluger, supra note 71, at 442–44.
81. Greenberg, supra note 12, at 123–24, 137.
82. It is important to note that Clark’s testimony constituted, in certain ways, a return
of the social sciences into the realm of politics. During the interwar years, as Daryl Scott
observes, many social scientists retreated from Progressive Era notions that academic work
should be directly linked to political action. Scott, supra note 6, at 57–58. This retreat
coincided with the Depression and the concomitant class-based politics of the New Deal.
For a brief moment that was uncharacteristic of the country’s laissez faire, pro-corporate
traditions, America substituted Marx for Freud and looked critically at the nation’s
economic apparatus. Jonathan Holloway shows how this coincided with the rise of three
Seq: 13
Impressed with Clark’s findings, the Supreme Court of the United
States relied on it as well as other sociological studies to bolster its equal
protection finding in Brown.83 Two years after Wertham testified in
Delaware, Chief Justice Earl Warren quoted findings from a Kansas court
to argue that “[s]egregation of white and colored children in public
schools has a detrimental effect upon the colored children.”84 This effect
was “greater” when it had “the sanction of the law” because such sanction
tended to denote “the inferiority of the [N]egro group” and therefore
had a tendency to “[retard] the educational and mental development of
[N]egro children.”85 “Whatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson,” continued Warren, “this
finding is amply supported by modern authority.”86 To support its assersocial scientists who did not retreat from politics, Ralph Bunche, E. Franklin Frazier, and
Abram Harris, all of whom emphasized the centrality of class to understanding society. See
Jonathan Scott Holloway, Confronting the Veil: Abram Harris Jr., E. Franklin Frazier, and
Ralph Bunche, 1919–1941, at 4 (2002) (“Harris, Frazier, and Bunche took a position . . .
that racial antagonism was a manifestation of economic forces. Maintaining this position
meant that they were swimming against the popular progressive tide . . . .”). Perhaps not
surprisingly, the work of these social scientists, in particular Frazier, was misappropriated
and distorted in the post-war, Civil Rights Era, as America, in a Cold War frenzy,
abandoned Marx and returned to Freud. The fact that the NAACP participated in this
trend by turning to child psychology reveals the extent to which it understood Cold War
politics and sought consistently to remain politically viable by framing its own agendas in
the larger political, discursive context of the time. Penny Von Eschen discusses this shift in
NAACP strategies directly in Penny M. Von Eschen, Race Against Empire: Black
Americans and Anticolonialism, 1937–1957, at 109–10 (1997) (writing that after World
War I, “violence and repression animated the attempts of many African Americans to carve
out a space in the Truman administration” to influence domestic civil rights, an effort that
led to creation of President’s Committee on Civil Rights).
83. Daryl Scott provides a critical analysis of the social science evidence presented in
Brown. See Scott, supra note 6, at 121–30 (explaining necessity of using “intellectual
legerdemain” to conform existing social science to integrationist position). Given the
indeterminacy of the evidence, Scott goes on to argue convincingly that the Court’s turn to
social psychology constituted a shrewd political move made by a consummately political
court. See id. at 133–36 (calling Brown “a masterful work of judicial diplomacy and public
relations”). It sought to walk a tightrope between growing national and international calls
to end Jim Crow, while at the same time seeking to minimize white resistance in the South.
See id. at 134 (describing “Warren’s rhetorical thicket about societal changes” as “a device
to placate”). By introducing the psychological development of black children into the
Court’s rationale, Chief Justice, and former Governor of California, Earl Warren sought
both to invoke sympathy for black children as well as to avoid blasting southern whites. Id.
Under Brown, white southerners were not morally wrong to support segregation, they were
simply scientifically incorrect. Daryl Scott makes a convincing case for the argument that
Warren relied on theories of psychological damage at least in part to reduce resistance by
southern whites. See id. at 133–34 (describing use of “damage imagery” as means to better
achieve “compliance of southern whites”).
84. Brown v. Bd. of Educ., 347 U.S. 483, 494 (1954) (quoting Findings of Fact and
Conclusions of Law at para. 8, Brown v. Bd. of Educ., 98 F. Supp. 797 (D. Kan. 1951)).
85. Id. (alterations in original).
86. Id.
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tion, the Court cited a string of sociological studies, gathering them in
footnote eleven of its opinion.87
Footnote eleven proved critical to Brown’s holding, partly because
the NAACP had chosen to argue that the disparate impact of segregation
on white and black children violated their right to equal protection
under the law, as set forth in the Fourteenth Amendment. Without evidence that this was true, the NAACP’s constitutional claim would have
collapsed. Although the NAACP could have argued that school facilities
for white and black children were unequal, they chose not to out of fear
that the South would simply funnel money into improving black schools,
preserving segregation in the process.88 By turning to psychiatric testimony like Wertham’s, the NAACP could instead argue that segregation
harmed black children regardless of whether their facilities were inferior.
Interestingly, the NAACP pursued the youth question in other ways
as well, focusing on mass media and popular culture. Recognizing the
negative cultural impact of delinquency films like Blackboard Jungle, the
NAACP’s Youth Division entered into a cooperative relationship with the
Thomas Alva Edison Foundation (TAEF), a private, nonprofit entity dedicated to raising public awareness about technology and its uses.89 In
1955, the Edison Foundation sought to improve the quality of mass media directed at youth by sponsoring a series of awards for productions in
film, radio, television, children’s books, and comics.90 TAEF’s inaugural
brochure declared that the intent of the awards was to encourage the
mass media to “realize their potential for constructive influence on the
nation’s youth.”91 To ascertain which media productions best served
youth, the Foundation requested that participating organizations—including the NAACP—appoint representatives to a “Committee on
87. Id. at 494 n.11 (listing sociological studies). The footnote specifically read:
K. B. Clark, Effect of Prejudice and Discrimination on Personality Development
(Midcentury White House Conference on Children and Youth, 1950); Witmer
and Kotinsky, Personality in the Making (1952), c. VI; Deutscher and Chein, The
Psychological Effects of Enforced Segregation: A Survey of Social Science
Opinion, 26 J. Pscyhol. 259 (1948); Chein, What are the Psychological Effects of
Segregation Under Conditions of Equal Facilities?, 3 Int. J. Opinion and Attitude
Res. 229 (1949); Brameld, Educational Costs, in Discrimination and National
Welfare (MacIver, ed., 1949) 44–48; Frazier, The Negro in the United States
(1949) 674–81. And see generally Myrdal, An American Dilemma (1944).
Id. The Court did not cite Frederic Wertham, perhaps because it did not want to confuse
the debate over segregation with larger debates over mass culture at the time. Wertham’s
larger work, because it focused so extensively on comic books, may have threatened to
introduce issues of censorship and the First Amendment into what was otherwise a
decision on race. If segregation harmed black children and therefore should be abolished,
for example, then why shouldn’t comic books, which did the same thing, be banned?
88. See Kluger, supra note 71, at 474 (describing monetary judgments awarded to
black schools based on successful unequal facilities suits).
89. Thomas Alva Edison Found., National Mass Media Awards, 1955–1956 (1956), in
Papers of the NAACP, Library of Congress, at Box III E38 [hereinafter NAACP Papers].
90. Id.
91. Id.
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Recommendation” assigned to identifying and awarding programs and
publications that delivered a positive message.92
At the Foundation’s first “Conference on Youth” in Washington,
D.C. in 1955, awards for the Best Children’s Comic Book and the Best
American History Comic Book went, respectively, to Gulliver’s Travels and
Benjamin Franklin, both far cries from the types of crime comics that
Fredric Wertham denounced.93 In its memorandum on the award, the
Foundation agreed with Wertham that comics represented “an important
medium of mass communication” and should strive to serve “young people” by portraying heroes whom they could “admire and emulate with
advantage.”94 In a similar vein, the “Best Children’s Film” award went to
The Great Adventure, a Swedish film about two boys who adopt an otter as a
pet.95 Described as a “poem in pictures” by the New York Times,96 The
Great Adventure transported audiences far from the gritty, inner city realities of movies like Blackboard Jungle.
Excited about the participation of the NAACP in its awards program,
TAEF President Charles Edison personally invited NAACP Executive
Secretary Roy Wilkins to the Second Annual Awards Dinner in 1956.97
Noting that the ceremony was likely to be “both interesting and stimulating,” Edison expressed hope that Wilkins might be able to attend.98
Though Wilkins was already engaged, the NAACP held the ceremony in
enough esteem to send Youth Secretary Herbert L. Wright, who handled
the organization’s nominations for prizes.99
In addition to joining TAEF’s efforts at improving mass media,
Wright also engaged youth directly through the NAACP’s Youth and
College Division. On May 14, 1957, Wright announced a “Mass Youth
Rally” in New York City celebrating “young leaders who have made an
outstanding contribution to the fight for freedom in the South.”100 Hosts
92. Id.
93. Id.
94. Id.
95. Id.
96. Bosley Crowther, Screen: Picture Poem; ‘Great Adventure’ is Paean to Nature,
N.Y. Times, May 24, 1955, at 34.
97. Letter from Charles Edison, Honorary President, Thomas Alva Edison Found., to
Roy Wilkins, Exec. Sec’y of the NAACP (Nov. 7, 1956), in NAACP Papers, supra note 89, at
Box III E38.
98. Id.
99. For Wright’s acceptance of the TAEF invitation, see Letter from Herbert L.
Wright, NAACP Youth Sec’y, to Charles Edison, Honorary President, Thomas Alva Edison
Found. (Nov. 14, 1956), in NAACP Papers, supra note 89, at Box III E38. For Wright’s
involvement in nominating comic books for awards, see Letter from Herbert L. Wright,
NAACP Youth Sec’y, to Cecil Golan, Thomas Alva Edison Found. (Feb. 19, 1957), in
NAACP Papers, supra note 89, at Box III E38; Letter from Herbert L. Wright, NAACP
Youth Sec’y, to George Probst, Exec. Dir., Thomas Alva Edison Found. (Nov. 13, 1956), in
NAACP Papers, supra note 89, at Box III E38.
100. Press Release, NAACP, Mass Youth Rally in New York to Honor “Young Freedom
Fighters” (May 14, 1957), in NAACP Papers, supra note 89, at Box III E51.
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of the evening included “top stars of the stage and screen,” such as
Sammy Davis, Jr., Harry Belafonte, and Sidney Poitier—the very same actor who had starred in Blackboard Jungle.101
Honorees included Bobby Caine, a young activist who helped protect black high school students from white mobs in Clinton, Tennessee;
Fred Moore, a student expelled from South Carolina State College for
participating in a “counter-boycott” against the White Citizens’ Councils;
and Ernest McEwen, expelled from Mississippi’s Alcorn College for organizing a student protest against a prosegregationist member of the
faculty.102 Open to members of the NAACP’s Youth and College
Divisions from Pennsylvania, New Jersey, New York, Maryland, Virginia,
and other states, the rally merged political activism with popular culture,
employing celebrities like Belafonte, Poitier, and Davis to underscore the
heroism of direct action protest in the South.103
Civil rights historians generally do not emphasize that the NAACP
embraced popular culture to raise consciousness over civil rights in the
late 1950s.104 While some scholars do mention the NAACP’s attempts to
publicize racial violence, particularly in Mississippi, they tend not to link
those efforts to the media-centric strategies that would come to character-
101. Letter from Herbert L. Wright, NAACP Youth Sec’y, to Youth Councils and Coll.
Chapters in Region II and Region VII (May 15, 1957), in NAACP Papers, supra note 89, at
Box III E51. For reference to the four hosts, see Coll. & Youth Div. of the NAACP, Public
Service Spot Announcement (May 26, 1957), in NAACP Papers, supra note 89, at Box III
102. Press Release, NAACP, supra note 100. For more on the individual freedom
fighters honored, see Memorandum from Herbert L. Wright to Mr. Moon, Re: Youth
Freedom Fighters Rally (May 29, 1957), in NAACP Papers, supra note 89, at Box III E51.
103. See Press Release, NAACP, supra note 100 (“The idea is to salute young leaders
who have made an outstanding contribution to the fight for freedom in the South.”
(quoting Herbert L. Wright)).
104. Legal historians tend to focus almost exclusively on the litigation aspect of the
NAACP’s struggle against Jim Crow. See, e.g., Klarman, supra note 5, at 7 (analyzing
litigation “as a distinct method of social protest” and evaluating its “advantages and
disadvantages”); Mark V. Tushnet, Making Civil Rights Law: Thurgood Marshall and the
Supreme Court, 1936–1961, at 6–19 (1994) (discussing Marshall’s experience as lawyer
with NAACP). Civil rights historians tend to focus on the organizing aspect of the
movement, not cultural manipulation. See, e.g., Clayborne Carson, In Struggle: SNCC
and the Black Awakening of the 1960s, at 19–30 (1995) (discussing initial formation of
SNCC); Adam Fairclough, To Redeem the Soul of America: The Southern Christian
Leadership Conference and Martin Luther King, Jr. 2 (1987) (“Movement, organization,
or church, SCLC was effective. Its accounts may have been slipshod and its internal
structure chaotic, but SCLC excelled in the area that mattered most in the early 1960s: the
theory and practice of nonviolent direct action.”); Aldon Morris, The Origins of the Civil
Rights Movement: Black Communities Organizing for Change 120–28 (1984) (discussing
relationships and shared membership between NAACP and SCLC); Charles M. Payne, I’ve
Got the Light of Freedom: The Organizing Tradition and the Mississippi Freedom
Struggle 236–64 (1995) (discussing grassroots movements and “overlooked” leaders of
those movements).
Seq: 17
ize the movement’s direct action phase in the 1960s.105 Though that
phase has since gone down in history as a partial reaction to the bureaucratic approach of the NAACP, it is perhaps more accurate to view the
movement’s strategies in the 1960s as an intensification of the NAACP’s
cultural initiatives of the 1950s.106 Long criticized for being bureaucratic
and litigation-centric, in other words, the NAACP actually adopted a culturally focused, “mass defense” oriented approach to legal change much
earlier, a point documented by legal historian Kenneth W. Mack.107
Much of the NAACP’s work on the cultural front escaped white segregationists—except its foray into social science. Upon reading Earl
Warren’s reference to social science in footnote eleven of Brown, many
white southerners were shocked.108 “I submit that white children also
have rights,” proclaimed Mississippi Senator James O. Eastland only
105. Although Taylor Branch described attempts by the NAACP to influence mass
culture in the early years of the civil rights movement, he did not focus on the NAACP’s
efforts to influence media during the 1960s nor did he draw direct links between efforts to
influence the media in the 1950s and efforts in the 1960s. See Taylor Branch, Parting the
Waters: America in the King Years 1954–63, at 206, 225–26 (1988) [hereinafter Branch,
Waters] (focusing discussion of mass communication use on that of Martin Luther King,
Jr.). By contrast, David J. Garrow does emphasize the movement’s interest in manipulating
mass media, but begins his analysis with Birmingham in 1963, not Herbert Wright and Roy
Wilkins in the 1950s. See David J. Garrow, Bearing the Cross: Martin Luther King, Jr. and
the Southern Christian Leadership Conference 264 (1986) (quoting Andrew Young as
stating “we were constantly using the mass media to try to get across to the nation what our
message was” and Wyatt Walker as stating “[t]here never was any more skillful
manipulation of the news media than there was in Birmingham”); David J. Garrow, Protest
at Selma: Martin Luther King, Jr., and the Voting Rights Act of 1965, at 161–78 (1978)
(discussing congressional comments’ references to and reliance on approximately six
dozen pieces of information from newspapers, television, photos, and radio in Selma
106. Historians who stress the rift between the NAACP and younger organizations like
the Southern Christian Leadership Conference (SCLC) and the Student Non-Violent
Coordinating Committee (SNCC) include Carson, supra note 104, at 137, Fairclough,
supra note 104, at 64–65, and Payne, supra note 104, at 375–78.
107. See Kenneth W. Mack, Law and Mass Politics in the Making of the Civil Rights
Lawyer, 1931–1941, 93 J. Am. Hist. 37, 39 (2006) (describing “mass defense” strategy that
became controversial during Depression); Kenneth W. Mack, Rethinking Civil Rights
Lawyering in the Era Before Brown, 115 Yale L.J. 256, 352 (2005) (arguing pre-Brown,
lawyers engaged in “voluntarist strand” of “race uplift,” emphasizing “everyday, practiceoriented work rather than transformative litigation”).
108. Daryl Scott suggests that southern whites were, to some extent, right in believing
that the social science evidence in Brown was politically motivated. He shows, for example,
how many of the social psychologists enlisted by the NAACP, and indeed much of the field
at the time, were driven by left-wing politics. Scott observes:
If the case had to be based on the social science literature alone, the
shortcomings would probably have forced the NAACP to reject the intangible
strategy. Yet social science existed not simply as a body of literature but also as a
socially identifiable community whose members were part of the larger political
culture. Much to the good fortune of the integrationists and to the detriment of
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weeks after Brown was handed down.109 “[T]ensions and frictions generally found in an interracial school,” continued Eastland, “certainly will
have a bad effect on a white child, and in my judgment will interfere with
the white child’s ability to learn.”110 South Carolina journalist William D.
Workman echoed Eastland’s concerns in a book defending Jim Crow:
[T]he integrationists, who cry for racial admixture in the cause
of bolstering the personality development of a Negro minority
do not hesitate to compel the mingling of a white minority with
a black majority without any consideration of the inevitable psychological impact upon the personalities of the white children.
Indeed, there has been monumental indifference on the part of
the race-mixers concerning the likelihood of adverse psychological effects upon white children.111
Southern leaders became particularly enraged at the Court’s use of
developmental psychology in overturning a legal system that had been in
place for half a century.112 Georgia Attorney General Eugene Cook,
speaking at a segregationist rally of 8,000 people in New Orleans in 1956,
lamented the fact that, in his view, “the justices based their decision not
upon any premise or tenet of law, but solely upon sociological and psychological theories.”113 South Carolina Senator Olin D. Johnston reiterated this sentiment. “When I became a United States Senator,” declared
Johnston, “I took an oath to support and defend the Constitution of the
United States,” but this did not include supporting “sociological pronouncements of a Supreme Court” that replaced law with arbitrary “judicial dictatorship.”114
the segregationists, postwar social science was virtually a one-party state in favor of
the racial liberals’ goal of desegregation.
Scott, supra note 6, at 125.
109. 100 Cong. Rec. 11,523 (1954) (statement of Sen. Eastland).
110. Id.
111. William D. Workman, Jr., The Case for the South 241 (1960).
112. Even northern sources commented on the Court’s reliance on social psychology.
“Relying more on the social scientists than on legal precedents—a procedure often in
controversy in the past,” noted a reporter from the New York Times, “the court insisted on
equality of the mind and heart rather than on equal school facilities.” James Reston, A
Sociological Decision: Court Founded Its Segregation Ruling on Hearts and Minds Rather
than Laws, N.Y. Times, May 18, 1954, at 14-L. “The court’s opinion read more like an
expert paper on sociology than a Supreme Court opinion,” continued Reston. “[I]t
sustained the argument of experts in education, sociology, psychology, psychiatry and
anthropology.” Id.
113. 53 NAACP Heads Reds, Says Cook: Georgia Attorney General Talks at N.O.
Rally, Times-Picayune (New Orleans), Mar. 21, 1956, at 3.
114. Centralization Hit by SC Solons: Lawmakers Issue Warnings in Both Senate,
House, The State (Columbia, SC), Mar. 2, 1956, at 1-D. Even moderate Florida protested.
According to the Florida legislature, the Supreme Court:
[C]ited as authority for the assumed and asserted facts the unsworn writings of
men, one of whom was the hireling of an active participant in the litigation.
Others were affiliated with organizations declared by the attorney general of the
United States to be subversive, and one of whom, in the same writing which the
Seq: 19
Outrage at the Court’s reliance on social psychiatry joined other objections, among them that the Court had overstepped its bounds and
transgressed states’ rights.115 The end result of this anger was nothing
less than a region-wide political backlash that culminated in a political
program of massive resistance.116 Coined by Virginia Senator Harry
Flood Byrd, massive resistance referred to a policy of total defiance of the
Court.117 Its centerpiece was interposition, a theory recovered by
Virginian James Jackson Kilpatrick from the annals of American constitutional history, first articulated by James Madison and John C. Calhoun,
declaring that states possessed the right to “nullify” interpretations of the
Constitution handed down by the Supreme Court.118 Much as Georgia
had ignored the Supreme Court’s ruling in favor of Cherokee Indians in
Worcester v. Georgia 119 in 1832, so too did Kilpatrick believe that southern
states could simply ignore Brown, declaring such a rejection an intrinsic
part of their sovereignty.120
While outrage at the Court’s reliance on social science contributed
to massive resistance, it also triggered a more discursive move aimed at
articulating why, precisely, southerners opposed integration. This move,
pioneered by moderates and conservatives alike, borrowed from the
NAACP’s own strategies in Brown and attempted to communicate with
white Americans outside the South. “Our only hope at present,” announced Emory Rogers, one of the attorneys who had represented South
Carolina in Brown, “lies not in the carrying on of the battle in the courts”
but rather in taking “the battle to the people and using the same psychological and sociological warfare that has been so successfully carried on
against us.”121
court cited as authority for its decision stated that the [C]onstitution of the
United States is impractical and unsuited to modern conditions.
S. Con. Res. 17-XX, 1955–1956 Leg., Extraordinary Sess. (Fla. 1956) (internal quotation
marks omitted).
115. James Jackson Kilpatrick, The Sovereign States: Notes of a Citizen of Virginia
286 (1957); see also Bartley, supra note 5, at 184 (discussing southern propagandists’
arguments that Brown unconstitutionally violated states’ rights).
116. For a detailed account of massive resistance, see generally Bartley, supra note 5,
and Francis M. Wilhoit, The Politics of Massive Resistance (1973).
117. Bartley, supra note 5, at 109–15.
118. See, e.g., Klarman, supra note 5, at 320 (using “interposition” to describe state
resolutions attempting to nullify Brown as illegal encroachment).
119. 31 U.S. (6 Pet.) 515 (1832).
120. See Bartley, supra note 5, at 128–29 (describing interposition as deriving from
view of United States as “a federated—almost a confederated—Union composed of
sovereign states, their powers protected by a static Constitution”); Editorial, Interposition:
Yesterday and Today, Richmond News Leader, Feb. 2, 1956, reprinted in Interposition:
Editorials and Editorial Page Presentations 50, 50 (James Jackson Kilpatrick ed., 1956)
(“The whole concept of this Union, the greatest feature of its architecture, was the concept
of dual sovereignty . . . .”).
121. Rogers Gives Views on Segregation Fight, News & Courier (Charleston, S.C.),
Aug. 23, 1955, at 1-B.
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One particularly insidious mode of sociological warfare that
emerged was the manipulation of vital statistics.122 To support the
counterthesis that integration would harm whites, segregationists employed elaborate compilations of marriage rates, venereal disease rates,
and illegitimacy rates, even manipulating state law to exacerbate seeming
disparities in these rates.123 For example, in 1956, Mississippi invalidated
common law marriage in the hopes that it might artificially boost the
appearance of black illegitimacy rates in the state.124 North Carolina,
conversely, manipulated state law to mask the compilation of white illegitimacy rates by encouraging adoptions.125 Specifically, women who gave
their children up for adoption could avoid having those children declared illegitimate, a measure that disproportionately affected whites because the number of adoption homes for unwed white mothers was much
greater than those for blacks.126
Perhaps the most public proponent of statistical manipulation was by
a congressional representative from Mississippi, John Bell Williams. In
January 1956, Williams entered five articles from the Jackson Daily News
into the Congressional Record, each one describing a different horror
story stemming from racial conflicts in Washington, D.C. schools, all
under the heading “The Sordid Picture of Integration in the Nation’s
Capital.”127 Williams’s focus on D.C. stemmed from the fact that the
District of Columbia had begun to desegregate in 1954, long before any
southern state. President Eisenhower, somewhat optimistically, had
claimed that D.C. would be a model for integration across the country,128
an assertion that invited scrutiny from southern whites, particularly those
interested in conveying to the rest of America the social implications of
sending white children to black schools. “The records show that around
75 percent of Washington crime is committed by Negroes,” asserted one
of the pieces submitted by Williams. It continued:
Negroes commit about 5 murders to every 1 for the whites.
Rape cases of record show Negroes leading at the rate of about 7
to 1. This does not include the unreported rape cases in which
white victims—mostly school students—decided to remain quiet
rather than subject themselves to the public disgrace they would
have to bear through no fault of their own.129
122. Anders Walker, The Ghost of Jim Crow: How Southern Moderates Used Brown v.
Board of Education to Stall Civil Rights 41–42, 77–82 (2009).
123. Id. at 41–42.
124. Id.
125. Id. at 78–80.
126. Id.
127. 102 Cong. Rec. A568–71 (1956) (extension of remarks of Rep. John Bell
128. Branch, Waters, supra note 105, at 113.
129. 102 Cong. Rec. A568 (1956) (extension of remarks of Rep. John Bell Williams).
Seq: 21
Two months later, Williams went into more depth, openly blasting
the Court for not acknowledging racial difference. As Williams asserted
in a speech entitled “Where is the Reign of Terror?”:
Those who are farthest removed from the segregation problem,
are the first to come forward with solutions to it, none of which
suggest that those who must live with the problem should be
consulted . . . . The time has come for the light of truth to penetrate the iron curtain that has been thrown around the facts regarding racial differences and distinctions.130
Such facts, continued Williams, had been obfuscated by the northern
press—which was intent on excoriating the South for wrong-doing—yet
could be found in the Annual Report of the Federal Bureau of Prisons.131
Williams argued that, according to the report:
Negroes comprise 10 percent of the total population of the
United States. Yet, as the above table shows, Negroes committed
more than half the homicides, both murder and manslaughter,
in our country in 1950. This 10 percent of our population is
also responsible as this table shows, for a disproportionate share
of crimes committed.132
Implicit in Williams’s remarks lurked a sleight of hand. By citing
statistics, he sought to bolster the South’s position with the rational discourse of social science. Williams attempted to prove that white
southerners adhered to their policies because of scientifically supportable
differences in black behavior. This move, which reframed southern racism in terms of seemingly objective data rather than irrational prejudice,
carefully avoided the possibility that black crime and illegitimacy rates
may have been symptomatic of factors other than race. That they may
have been more linked to institutional racism, structural inequality, or
economic class, rather than race, was not something that Williams
To impress upon America the consequences that integration might
have on white children and to rearticulate the southern defense of segregation in rational terms, Williams initiated a study of integrated schools
in Washington, D.C. This study, sponsored by the House Subcommittee
to Investigate Public School Standards and Conditions, and Juvenile
Delinquency in D.C., was authored by Williams and three other white
southern congressmen: Joel T. Broyhill of Virginia, Woodrow Jones of
North Carolina, and James C. Davis of Georgia.134
130. 102 Cong. Rec. 5690 (1956) (remarks of Rep. John Bell Williams).
131. Id. at 5690–94.
132. Id. at 5692.
133. For a discussion of alternative explanations for black crime and illegitimacy rates,
see generally Kenneth B. Clark, Color, Class, Personality and Juvenile Delinquency, 28 J.
Negro Educ. 240 (1959).
134. Two other congressmen, DeWitt Hyde of Maryland and A.L. Miller of Nebraska,
also belonged to the committee, but refused to sign the report. Public School Conditions
Report, supra note 4, at 47–48.
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[Vol. 110:1911
The Subcommittee’s report was a segregationist masterpiece, documenting rampant delinquency among black students, some of it violent
and most of it sexual.135 “Discipline problems and delinquency resulting
from the integration of the schools have been appalling,” asserted the
report.136 “Prior to the integration of the schools in the District of
Columbia there were very few unusual disciplinary problems in either of
the school systems,” continued the Subcommittee. “Since the integration
of the schools there have been very few unusual disciplinary problems in
the predominately segregated schools.” By contrast, “[d]isciplinary
problems in the predominately integrated schools have been described as
appalling, demoralizing, intolerable, and disgraceful.”137
Among the problems cited in the report were “fighting, lying, stealing, vandalism, obscene writing, vulgar talking, absenteeism, tardiness,
and truancy,” as well as more serious offenses.138 Of particular concern
were offenses revolving around sex. “[S]ex problems in the predominately integrated schools have become a matter of vital concern to the
parents,” announced the report, suddenly turning to statistics:
One out of every four Negro children born in the District of
Columbia is illegitimate. The number of cases of venereal disease among Negroes of school age has been found to be astounding and tragic. The Negro has demonstrated a sex attitude from the primary to high school grades that has greatly
alarmed white parents and is a contributing cause of the exodus
of the white residents of the District of Columbia.139
The report continued by citing statistics on black arrest records, test
scores, and venereal disease rates:
The evidence, taken as a whole, points to a definite impairment
of educational opportunities for members of both white and
Negro races as a result of integration, with little prospect for
remedy in the future. Therefore, we recommend that racially
separate public schools be reestablished for the education of
white and Negro pupils in the District of Columbia, and that
such schools be maintained on a completely separate and equal
DeWitt Hyde and A.L. Miller, both of whom refused to sign the final
report, disagreed.141 “Since we have not signed the majority report submitted by the staff of the subcommittee, we desire to offer the following
observations,” noted the two non-Southerners in an addendum.142 “We
have carefully read the hearings, report, and the recommendations made
at 44–46.
at 45.
at 24.
at 45.
at 47.
at 48.
Seq: 23
by the staff and the subcommittee,” they wrote, and yet “[w]e have a feeling that a more objective approach would uncover some good things in
the educational and social life of the District schools.”143 Although acknowledging that the statistics cited in the report were true, both representatives questioned the underlying motivations of their southern counterparts. “The report seems to blame all of the educational deficiencies
in our school system entirely on the efforts toward integration,” they lamented. “We cannot believe that everything that is wrong with the educational system can be blamed on integration.” Further:
[I]n a close reading of the hearings, we must come to the conclusion that the technical staff presented leading questions to a
selected group of witnesses. While we do not doubt the honesty
or sincerity of the witnesses who testified, the testimony does not
appear to be well-balanced, or objective, since persons with
views not in accord with those of the counsel were not given full
and fair opportunity to testify.144
Despite the caveat provided by Hyde and Miller, the 1957 report on
integrated schools in D.C. represented one of the most sophisticated attempts to rearticulate the South’s position on integration. John Bell
Williams, the instigator of the study, effectively linked the South’s fight
against integration with concerns over health and morals that could be
understood by white parents nationwide. One of these concerns was that
white children would be harmed if enrolled in school with blacks.145 Another was that contact with black children would not simply harm white
children but corrupt them—leading invariably to promiscuous, premarital, interracial sex.146 This was the implicit message that Williams delivered when he assigned his committee to study delinquency and not race
in D.C. public schools.
Initiated one year after the release of Blackboard Jungle, Williams’s
study capitalized on national fears of teen rebellion in schools by linking
them to racial integration. It presented the subtle—if unproven—claim
that black delinquency might have a negative mass influence on white
children, transforming them into delinquents as well. Just as social psychiatry aided proponents of integration, so too could it be used to legitimize concerns of southern segregationists like John Bell Williams. It
helped Williams and others explain the consequences that integration
would have on white children in terms that white parents across the country might understand. And, it also helped them turn the NAACP’s claims
about black youth that had been legitimated in Brown upon themselves.
Segregationists like Williams were well aware, for example, that African
Americans working for the NAACP Legal Defense Fund understood the
role that developmental psychology could play in promoting black politi143.
Cahn, supra note 5, at 280.
Id. at 281.
Seq: 24
[Vol. 110:1911
cal interests.147 Indeed, this awareness had led Thurgood Marshall and
others to seek out the psychological experts cited by the Supreme Court
in Brown.
And yet, the sociological sword proved double-edged. As John Bell
Williams’s study of juvenile delinquency in Washington, D.C. schools indicates, the discourse of developmental psychology could be turned
against the black struggle for civil rights as well. Indeed, even as national
hysteria over juvenile delinquency created opportunities for the NAACP,
so too did it reinscribe notions of racial difference popular in American
thought at the time. Not surprisingly, segregationist organizations like
the Mississippi Citizens’ Council proceeded to adopt Williams’s report on
D.C. schools as evidence bolstering the ideological platform of massive
resistance.148 In 1956, the monthly Citizens’ Council cited the hearings
conducted in the House of Representatives. “[T]he facts about the mess
in Washington’s schools are on the record, and here are some of them,”
lamented the paper, proceeding to cite the testimony of public school
principal John Paul Collins. “The problem of discipline was tremendous.
Colored girls used language worse than any I ever heard in the Marine
Corps. Knifings became more or less commonplace, and many sex
problems were reported during the first year following integration.”149
One year later, Mississippi judge and Citizens’ Council leader Tom
Brady used some of Williams’s statistics when he traveled to California to
make the South’s case to an influential group of conservatives in San
Francisco. “An exhaustive study of the program and results of integration
in the schools of Washington, D.C. which the NAACP and other left wing
groups fostering integration said would be a model for the rest of the
United States to follow,” explained Brady to the prestigious
Commonwealth Club in San Francisco, “clearly reveals that the average
white student who was integrated in the class room with the Negro has
been retarded two to three years in his educational progress.”150 Appropriating the neutral tone of the sociologist, Brady continued that “it is not
to the best interest of America that the white children, particularly in
certain congested sections, be retarded three years in their educational
Such dispassionate pleas fared better than hysterical cries of massive
resistance to the Supreme Court, hinting that the segregationist South
was beginning to look for common ground with the rest of the country.
147. See 102 Cong. Rec. 5690 (1956) (statement of Rep. John Bell Williams)
(rebutting NAACP’s “unceasing propaganda campaign . . . [in which] facts are being
deliberately concealed and distorted”).
148. Frank van der Linden, Sordid Facts Revealed by D.C. School Probe, Citizens’
Council, Oct. 1956, at 1, 3.
149. Id.
150. Judge Tom P. Brady, Segregation and the South, Address to the Commonwealth
Club of California at San Francisco 6–7 (Oct. 4, 1957), in Gov. Luther Hodges Papers,
North Carolina State Archives, at Box 312.
151. Id. at 7.
Seq: 25
At roughly the same time that Brady delivered his address in San
Francisco, white parents in Brooklyn publicly resisted an attempt by the
NAACP to have a school district in Bedford-Stuyvesant, a predominantly
black neighborhood, rezoned to incorporate white students.152 Part of
the hesitation resulted from increasing violence at integrated schools in
the Bedford-Stuyvesant and Bushwick neighborhoods.153 In November
1957, a special grand jury to investigate violence in New York City’s public
schools called for the assignment of police officers to patrol hallways after
reports of fights between students during class time.154 In January 1958,
the principal of John Marshall Junior High School—an integrated
Brooklyn school that had become the site of increasing disorder, including the rape of a female student in the school’s basement—committed
suicide by jumping off the roof of his apartment building before being
scheduled to testify before a King’s County grand jury investigating
school violence.155
Southern voices were quick to point to New York’s problems as a sign
that integration was poor policy. “[I] ‘would hate to think what the metropolitan press would have done to us’ if the Brooklyn school violence
had happened in Little Rock,” exclaimed Arkansas Governor Orval
Faubus.156 “[P]eople are not being told one-tenth of the trouble about
racial problems going on outside the South.”157 On February 5, 1958,
Georgia Governor Herman Talmadge announced that the citizens of
Georgia were “deeply sympathetic with the citizens of Brooklyn in the
difficulties they are experiencing in maintaining the integrity and independence of their public schools.”158 Talmadge even went so far as to
suggest that “the President of the United States send Federal troops to
Brooklyn to preserve order in the public schools there in the same manner that he did to force a new social order upon the public schools of
Little Rock, Arkansas.”159 As early as 1954, Senator James O. Eastland
had asserted the importance of making the South’s case to the nation, of
rearticulating southern racial views and presenting them at the foot of
national opinion.160 Now this was happening, not only through vehicles
152. Benjamin Fine, City to Spur Integration by Building of 60 Schools, N.Y. Times,
Oct. 31, 1957, at 1.
153. See Lawrence Fellows, Policeman for Each City School Urged by Brooklyn Grand
Jury, N.Y. Times, Nov. 26, 1957, at 1 (discussing possible response to “lawlessness in
Brooklyn’s public schools”).
154. Id.
155. Emanuel Perlmutter, Head of School Beset by Crime Leaps to Death, N.Y.
Times, Jan. 29, 1958, at 1.
156. Faubus Scores School Violence, N.Y. Times, Feb. 1, 1958, at 10.
157. Id. (internal quotation marks omitted).
158. 2 Senators Clash on City’s Schools, N.Y. Times, Feb. 5, 1958, at 16 (internal
quotation mark omitted).
159. Id. (internal quotation mark omitted).
160. 100 Cong. Rec. 11,523 (1954) (statement of Sen. Eastland) (urging colleagues to
bring fight for racial segregation to northern court of public opinion).
Seq: 26
[Vol. 110:1911
like Williams’s study of delinquency, but also through public statements
of southern political leaders like Talmadge.
While proponents of massive resistance like Brady, Williams, and
Eastland adopted aspects of delinquency discourse—an interesting development on its own—they failed to mount a successful legal challenge to
Brown. This raises a question: To what extent did talk of delinquency
actually impact law? Was it simply a duplicitous, discursive move? Or did
it engender legal change?
Just as segregationists complained of the negative impact that integration would have on youth crime, so too did delinquency laws sweep
the South in the 1950s and 1960s.161 In some instances, these laws derived directly from films like Blackboard Jungle.162 “During the first week
The Blackboard Jungle played here,” observed one Atlanta detective in
1956, for example, “we noticed a great increase in teenage crime,” particularly on Atlanta’s “overprivileged” Northside, where a white gang called
“the Dukes” engaged in a campaign of vandalism and robbery.163 Subse161. See, e.g., Interstate Compact on Juveniles, no. 675, 1965 Ala. Acts 1214, 1214
(declaring runaways be returned to home state); Act to Punish Parents or Persons
Standing in the Place of Parents for Gross Neglect of Minors Resulting in Delinquency, no.
109, 1963 Ark. Acts 307, 307 (creating misdemeanor for parents to engage in gross neglect
of minors resulting in delinquency); An Act to Authorize the Governor of This State to
Ratify the Interstate Compact on Juveniles, to Prescribe the Text of Such Compact, and for
Other Purposes, no. 155, 1957 Ark. Acts 462, 462 (declaring runaways be returned to home
state); Act of May 31, 1957, ch. 57-298, 1957 Fla. Laws 582, 582 (same); Act of Mar. 9, 1956,
no. 421, 1956 Ga. Laws 699, 699 (holding parents liable for child’s willful torts); Act of July
19, 1964, no. 489, 1964 La. Acts 985, 985 (requiring courts to furnish State Department of
Institutions copies of judgments or orders whenever juvenile delinquent is assigned,
transferred, or released to or from non-state operated institution); Act of July 3, 1958, no.
225, 1958 La. Acts 743, 744 (ordering runaways returned to home state); Act Signifying the
Consent of the State of Mississippi to the Interstate Compact on Juveniles, ch. 289, 1958
Miss. Laws 467, 467–68 (ordering runaways returned to home state); Act of Apr. 1, 1959,
ch. 198, 1959 N.C. Sess. Laws 182, 182 (converting North Carolina Sanatorium at McCain
into training facility for juvenile delinquents); Act of May 11, 1955, ch. 904, 1955 N.C. Sess.
Laws 856, 856 (creating youth service board for advising governor on all matters pertaining
to prevention, correction, and control of juvenile delinquency); Act of July 12, 1957, no.
390, 1957 S.C. Acts 572, 572 (making certain acts, which contribute to delinquency of
minors, unlawful); Act of Mar. 21, 1955, ch. 260, 1955 Tenn. Pub. Acts 1046, 1047
(ordering runaways returned to home state); Act of May 30, 1959, ch. 431, 1959 Tex. Gen.
Laws 934, 934–35 (providing persons having custody of delinquent child shall assume
financial responsibility for child’s acts); Act of May 23, 1957, ch. 281, 1957 Tex. Gen. Laws
660, 660–70 (creating Texas Youth Council to administer state’s correctional facilities for
delinquent children); see also H.J. Res. 13, no. 254, 1959 Ala. Acts. 817, 817–18 (declaring
juvenile delinquency serious problem and establishing Alabama Commission on Juvenile
Court Legislation).
162. Teen Crime Climbs on Northside; Parents, Gang Movies to Blame, Atlanta
Const., Feb. 6, 1956, at 1.
163. Richard Ashworth, Clergy, Jury, Legislators Grapple Juvenile Problem, Atlanta
Const., Feb. 8, 1956, at 1; Teen Crime, supra note 162, at 1.
Seq: 27
quently, the Georgia House “passed a ‘parental responsibility’ bill” making parents liable for “up to $500” of damage caused by their children.164
Other states targeted individuals who “contributed” to the delinquency of minors, particularly individuals who challenged racial boundaries.165 For example, South Carolina established penalties for adults who
encouraged delinquency in 1957,166 not long after police officers found
“a Negro youth sleeping at the house” of a “38 year-old white woman”
who held “dancing and drinking parties” for minors in Richland
County.167 Meanwhile, Alabama punished teachers for encouraging students to engage in “mass truancy,” including “any extra-curricular
More elaborate responses emerged in states where moderates tried
to counter extremist claims that desegregation invited youth crime—a
strategy that assumed a particularly stark profile in Virginia, the home of
massive resistance.169 In 1954, Virginia Governor Thomas Stanley appointed Arlington County Delegate Kathryn Stone to the General
Assembly as Chairman of the Governor’s Commission on Juvenile
Delinquency.170 At that time, Stone enjoyed a reputation as one of
Virginia’s more moderate, perhaps even progressive, leaders, voting
against Harry F. Byrd’s program of massive resistance and serving as a
plaintiff in a case suing for fair reapportionment in Virginia.171 Following the Supreme Court’s 1962 decision in Baker v. Carr, Stone urged citizens and legislators alike to take action with regard to the malapportionment of Virginia’s legislature, arguing that northern counties with
greater populations should have a greater voice in the legislature than
the less populated Southside counties.172 Stone was also active in the
League of Women Voters as its first vice president and in the Governor’s
164. Ashworth, supra note 163, at 1. For other states that made parents liable for the
crimes of their children, see Act of Aug. 6, 1956, ch. 31400, 1956 Fla. Laws 55 (holding
parents liable for actual damages of children not to exceed $300); Act of May 31, 1957, ch.
320, 1957 Tex. Gen. Laws 783 (entitling property owners to collect civil damages up to
$300 from parents of minors who maliciously and willfully damage property).
165. See, e.g., Act of July 12, 1957, 1957 S.C. Acts 572 (making it unlawful to
contribute to delinquency of minor).
166. Id.
167. Bob Ackerman, ‘Biggest’ Juvenile Theft Ring Described, The State (Columbia,
S.C.), May 21, 1957, at 1.
168. James E. Starrs, A Sense of Irony in Southern Juvenile Courts, 1 Portia L.J. 107,
117–18 (1966) (citation omitted).
169. See Bartley, supra note 5, at 109 (discussing Senator Harry F. Byrd’s
encouragement of massive southern resistance under Virginia’s leadership).
170. Elsie Carper, A Lonely Voice at Richmond, Wash. Post, Aug. 8, 1965, at E2.
171. Id. (“[Stone] warned the General Assembly that massive resistance to school
desegregation was producing ‘a spirit of lawlessness and disrespect for constitutional
172. Mrs. Kathryn Stone: Biographical Notes (1977), in Papers of Kathryn H. Stone,
University of Virginia Special Collections, at Series 10555-c [hereinafter Stone Papers].
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[Vol. 110:1911
Committee for Youth in Virginia.173 During the height of civil rights unrest, Stone’s was “the only voice” opposing “a package of bills aimed at
keeping the NAACP from bringing desegregation suits to court.”174
Stone’s moderation stemmed from the political leanings of her constituents: affluent, cosmopolitan denizens of Arlington, a wealthy suburb
of Washington, D.C.175 Unlike Virginia’s rural southern counties,
Arlington boasted a relatively cosmopolitan population with many inhabitants drawn from other parts of the country.176 At the same time, Arlington also bordered the D.C. school system, one of the first in the country
to be publicized by segregationists intent on stopping Brown.177
In the 1955 race for Arlington County School Board, echoes of concerns voiced in the Deep South emerged in metropolitan Virginia.
Therman M. Lloyd, in a letter dated November 1, 1955, encouraged voters to elect L.H. Blevins, Willis F. Kern, and Susan O’Hara to the
Arlington County School Board, warning that:
Your child’s future welfare can be undermined by close association with children of the opposite color. At an age of unawareness of racial and social differences, unwise attachments can be
and often are formed during school years that can result in
mixed marriages or worse. Is this risk fair to your child? People
of both races are concerned.178
When Kathryn Stone appeared before the Governor’s Commission
on Public Education on November 15, 1954, she articulated a rationale
for resistance slightly softer than extremist diatribes against the integra173. Carper, supra note 170; Isabelle Shelton, Two Women Brighten Virginia Politics,
The Sunday Star (D.C.), Oct. 4, 1953, at D-4.
174. Carper, supra note 170.
175. See James W. Ely, Jr., The Crisis of Conservative Virginia: The Byrd Organization
and the Politics of Massive Resistance 36, 76 (1976) [hereinafter Ely, Crisis] (explaining
Arlington’s white majority’s lack of enthusiasm for resistance campaigns); Matthew D.
Lassiter & Andrew B. Lewis, Massive Resistance Revisited: Virginia’s White Moderates and
the Byrd Organization, in The Moderates’ Dilemma: Massive Resistance to School
Desegregation in Virginia 1, 16 (Matthew D. Lassiter & Andrew B. Lewis eds., 1998)
(describing Arlington’s predominantly white population’s eventual call for “peaceful
176. See Ely, Crisis, supra note 175, at 21 (describing population of D.C. suburbs
including Arlington as made up of “federal employees, transients, and newcomers”).
177. Lassiter & Lewis, supra note 175, at 3–6 (detailing initial reaction to Brown in
178. Letter from Therman M. Lloyd to voters (Nov. 1, 1955), in Stone Papers, supra
note 172, at Series 10555-b. Fears of the effect that black children would have on white
students led to extensive looks at the academic performance rates of blacks and illegitimate
birth rates, as well as crime statistics and juvenile delinquency statistics in D.C. In a speech
entitled “Where is the ‘Reign of Terror’?” delivered before the U.S. House of
Representatives on March 27, 1956, Rep. John Bell Williams of Mississippi cited statistics on
Washington, D.C.’s crime, illegitimacy, and venereal disease rates. 102 Cong. Rec. 5690,
5692–94 (1956) (remarks of Rep. John Bell Williams). One year later, Williams joined
Woodrow Jones of North Carolina and Joel T. Broyhill of Virginia in issuing a devastating
report on integrated conditions in D.C. schools for a House subcommittee. Public School
Conditions Report, supra note 4, at 47.
Seq: 29
tion of D.C. schools. “I believe that there is a possibility, as there must
always be in the affairs of men,” Stone began, “for a thoughtful and temperate education of the mind and heart, in the best tradition of a
Christian and liberty-loving people whose basic tenet is respect for the
individual person.”179 Stone’s emphasis on the education of the mind
and the heart was not a call for blind acceptance of integration, but a
plea for nondivisive thinking about cultural and educational gaps between white and black youth. “[T]here is room for education of those
proponents of integration,” she continued, critiquing civil rights activists,
“who have never lived in a community with large numbers of Negroes,
many of whom still lack the cultural background needed to make immediate and complete integration practical.”180 Conversely, she maintained, “there is room for education of those opponents of the principle
of integration who have not lived in a community with smaller numbers
of Negroes, many of whom have attained professional and cultural standing.”181 By contrasting African Americans of “professional and cultural
standing” to those who “lack” cultural background, Stone brought to the
fore a factor that few segregationists proved willing to consider: class.
That class might have explained behavioral differences better than race
became a recurring theme in Stone’s politics, providing her with a justification for state programs aimed at addressing the problems of disadvantaged and delinquent youth.182
Interestingly, Stone’s frank assessment of delinquency coincided
with the position taken by prominent black sociologist Kenneth B. Clark.
Just as concerns over delinquency exploded in New York City public
schools, for example, Clark published an article in 1959 challenging
claims by white officials like John Bell Williams that integration contributed to delinquency.183 Conceding that “[t]hose who would seek to perpetuate antiNegro prejudices” had considerable “statistical and empirical
support,” Clark lobbied against the idea that racial essentialism was the
cause of youth crime.184 To his mind, structural forces were at work,
many linked to “the particular psychological burdens” that black children
bore precisely because they suffered a “stigmatized minority status.”185
Echoing his Brown study, Clark posited that black children were “burdened with deep feelings of inferiority” precisely because they were ex179. Hearing Before the Governor’s Comm’n on Pub. Educ. (Nov. 15, 1954)
(statement of Kathryn H. Stone, Del. from Arlington), in Stone Papers, supra note 172, at
Series 10555-b.
180. Id.
181. Id.
182. See Carper, supra note 170 (“[H]er bills established a . . . state system of regional
detention homes and a treatment center for emotionally disturbed youths. Another bill set
up the Governor’s Committee for Youth to study how young people were being educated
and trained . . . .”).
183. Clark, supra note 133, at 240.
184. Id.
185. Id. at 246.
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[Vol. 110:1911
posed to “racial prejudice, discrimination, and segregation.”186 Such
negative forces instilled in black children a “self-hatred” that manifested
itself in “overt, aggressive, hostile, and antisocial patterns of responses.”187 Clark also linked delinquency to class, noting that certain
crimes “reflecting generalized aggressions against property and convenient persons” could actually be linked to “lower-class group survival
norms.”188 Among these norms were “gang warfare, gambling and petty
Unlike John Bell Williams, who used D.C. schools to discredit integration, Stone used problems in D.C. schools to lobby for state services.
Her campaign gained momentum in the wake of a 1955 report issued by
the National Council of Churches of Christ positing that integration in
D.C. schools was “uncovering health and welfare problems, halfconcealed behind the curtain of segregation.”190 Aware that the hopes of
extremists were coming true and that D.C. was becoming a topic of national interest, Stone publicly opposed essentialist arguments that delinquency was a factor of race and that parents of delinquent children
should be blamed for their plight.191 “There are social and cultural factors working on children,” noted Stone during a talk to a group of parents at Richmond’s Ginter Park Elementary School, “that parents cannot
control.”192 To aid struggling parents, Stone endorsed the “establishment of a State Mobile Psychiatric Clinic for youth,” as well as “a Statewide system of juvenile detention homes.”193
Other recommendations issued by Stone’s Commission included improving the facilities at Virginia’s four state training schools for delinquent youths, including detention facilities and facilities for the treatment of maladjusted children.194 The Commission also recommended
measures that impacted all children, including increased vocational training, and kindergarten.195 “Considerable evidence was presented,” asserted a Commission report, “which indicates that delinquency arises
186. Id. at 247.
187. Id.
188. Id. at 246.
189. Id.
190. Cent. Dep’t of Research & Survey, Nat’l Council of Churches of Christ in the
United States of America, Integration in the Washington Schools, Information Service, Jan.
29, 1955, at 3, in Stone Papers, supra note 172, at Series 10555-a (internal quotation marks
191. Mrs. Stone Offers Defense of Parents, Times Herald (Newport News, Va.), Feb.
13, 1955, in Stone Papers, supra note 172, at Series 10555-b.
192. Id.
193. Candidate Profile, Kathryn H. Stone, Candidate for Re-election to the Virginia
House of Delegates (Nov. 7, 1961), in Stone Papers, supra note 172, at Series 10555-b.
194. Letter from Kathryn Stone to Voters (June 27, 1959), in Stone Papers, supra note
172, at Series 10555-a.
195. Comm’n to Study Juvenile Delinquency, A Study of Juvenile Delinquency, Report
to the Governor and the General Assembly of Virginia, H. Doc. No. 16, at 9–12 (1955), in
Stone Papers, supra note 172, at Series 10555-a.
Seq: 31
most easily among children of low grade intelligence. These children
find regular academic curricula too difficult, and their constant failure
frustrating.”196 To help such children, the Commission recommended
mental health programs in schools, “a modified academic program” and
“trade or vocational programs” in “grades seven, eight, and nine.”197
The Commission also declared that something be done about comic
The Commission believes that the General Assembly should
consider strengthening the statute controlling salacious literature to provide more stringent penalties which would specifically control the sale of crime and horror comic books to minors. It should also consider whether to provide a stronger
statute against the dissemination of pornographic literature and
Other laws recommended by the Commission included providing for
the development of regional detention facilities, improving standards for
kindergartens and nursery schools, and providing for issuance of provisional employment licenses.199
The Virginia Assembly followed much of the Commission’s advice.
In 1956, it enacted a law controlling comic books, making it a misdemeanor to “give, sell or distribute to any minor . . . any comic book, magazine, pamphlet, leaflet or other printed matter containing . . . (1) acts of
lust or obscenity, or (2) other acts which . . . might reasonably tend to
incite such minor to crime.”200 Virginia also enacted legislation to control the presence of weapons in schools, amending Virginia law in 1956 to
include switch-blade knives among weapons whose possession, use or sale
were prohibited.201
While switch-blade knives were probably a minor concern, the state
tackled larger problems of juvenile delinquency and youth crime. Indeed, state concern over juvenile offenses was reflected in several pieces
of legislation, among them a law that made parents liable for actively contributing to the delinquency of their children202 and a statute allowing
juvenile judges to make public the names, offenses, and parents of juvenile offenders.203 In addition to targeting parents, Virginia also moved to
allow a juvenile to be jailed overnight on a warrant signed by a justice of
the peace, subject to being placed in the custody of the juvenile court the
196. Kathryn H. Stone, Summary of the Commission on Juvenile Delinquency, Univ.
of Va. News Letter (Univ. of Va., Charlottesville, Va.), Jan. 15, 1956, at 1, in Stone Papers,
supra note 172, at Series 10555-a.
197. Id.
198. Comm’n to Study Juvenile Delinquency, supra note 195, at 26.
199. Id. at 9–12.
200. Act of Mar. 31, 1956, ch. 571, 1956 Va. Acts 932, 932–33.
201. Act of Mar. 9, 1956, ch. 289, 1956 Va. Acts 342, 342–43.
202. Act of Mar. 29, 1958, ch. 352, 1958 Va. Acts 425, 425.
203. Act of Mar. 29, 1958, ch. 353, 1958 Va. Acts 426, 426.
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[Vol. 110:1911
following morning.204 Another bill gave legislative sanction to corporal
punishment in the public schools.205 Though teachers possessed the authority to administer corporal punishment already, “legislators felt the
enactment of a bill specifically permitting it would have a healthful
In May 1959, a symposium was held in Richmond on welfare, education, and illegitimacy.207 That same year, the Virginia Assembly considered a bill “[d]irecting the Virginia Advisory Legislative Council to make
a study relating to problems concerning providing protective services and
day-care facilities for children.”208 On her copy of the bill, Kathryn Stone
penciled a note indicating that services provided directly to children in
their homes might be particularly effective. “[T]he providing of skilled
and adequate protective services to children in their own homes before
coming into the Juvenile Court,” she made her copy of the bill read, “can be
a means of restoring and preserving wholesome family life,” thereby linking the care of children to juvenile delinquency.209
Just as Stone supported increased outreach, so too did she endorse
improvements in state facilities for youth who had to be removed from
their homes.210 One of her most ambitious projects was a state-of-the-art
juvenile detention center near Arlington. In her mind, the center was
not “a catch all solution to the problems of juvenile delinquency,” but
rather “a link” in a much larger “chain of community services designed to
cope with juvenile problems.”211 At a ceremony commemorating the
center’s completion, Governor Lindsay Almond attributed the facility to
Stone’s hard work. “It is to Delegate Kathryn Stone of Northern
Virginia,” Almond announced, “that the entire state owes a great debt for
her creative idea for this facility and for her superb leadership in making
it a reality.”212 Almond recognized the difficulty involved in pushing new
programs through the state legislature, noting that while talk of such a
204. Act of Mar. 29, 1958, ch. 344, 1958 Va. Acts 411, 411–12.
205. Act of Mar. 12, 1958, ch. 293, 1958 Va. Acts 345, 345.
206. Memorandum from Carter O. Lowance, Governor’s Office, to Members of Va.
Gen. Assembly 6 (Mar. 10, 1958), in Stone Papers, supra note 172, at Series 10555-a.
207. The three-day symposium was held to present speakers scrutinizing the “[p]ast,
present and future needs of public welfare and health in Virginia,” including panels on
illegitimacy, welfare, institutions, public health, and education. Legislative Symposium
Speakers Are Announced, Richmond Times-Dispatch, May 17, 1959, at C7.
208. Bill Directing the Virginia Advisory Legislative Council to Make a Study Relating
to Problems Concerning Providing Protective Services and Day-Care Facilities for Children
H.R.J. Res. (unpublished draft) (Va. 1958), in Stone Papers, supra note 172, at Series
209. Id. (emphasis indicates Stone’s handwritten edits).
210. N. Va. Detention Center Dedicated; Hope for Troubled Youth, N. Va. Sun, Mar.
30, 1961, in Stone Papers, supra note 172, at Series 10555-c.
211. Id.
212. Governor J. Lindsay Almond, Jr., Address at the Dedication of the Virginia
Treatment Center for Children (Dec. 6, 1961), in Stone Papers, supra note 172, at Series
Seq: 33
facility had begun “in the 40’s,” nothing was actually done about it until
Stone recommended it in her report for the Commission on Juvenile
Delinquency in 1955.213
The success of Stone’s report, together with her success at leading
the expansion of juvenile justice in Virginia, underscores the manner in
which fears of delinquency exacerbated by Brown influenced southern
state formation. Though not a staunch segregationist, Stone nevertheless
took public fears over integration and channeled them into money for
youth services.
Of course, the dark lining to this silver cloud was that, despite her
success in expanding Virginia’s social safety net, Stone proved unable to
stop a reactionary movement based in the rural, southern counties of the
state that called for massive resistance to the Supreme Court. In 1956, for
example, a special commission boasting “heavy representation” from
“Southside areas—particularly the Fourth, Fifth and First congressional
districts—where Negro populations are relatively heavy,” succeeded in
thwarting moderate plans to end segregation by race and impose pupil
placement or assignment plans.214
By 1959, however, Governor J. Lindsay Almond argued that massive
resistance “had run its course,” signaling a decline in the power of southside extremists like Senator Harry Flood Byrd to dominate the state.215
Moderates like Kathryn Stone moved quickly to fill the void, emphasizing
the development of higher education, particularly community colleges.216 “The development of higher education will be the most important issue we’ll handle,” announced Stone in 1962.217 But, she warned,
the state would no longer pursue “education for education’s sake,” and
would instead work “to develop technical education,” a necessary goal if
Virginia wanted “to attract more developing industries to the state.”218
The ways to attain that end, according to Stone, were to strengthen the
public schools, offer technical training at a post-high school level, and
expand the community college program.219 “We need to keep youngsters in school longer, anyway,” she asserted, noting that “[w]e must start
right now to develop a full youth program. For example, hundreds of
boys between ages 16 and 21 are out of school and out of work.”220
For idle children who got in trouble with the law, the Virginia legislature approved more than $1,000,000 for the operation of a new Virginia
213. Id.
214. L.M. Wright Jr., Stanley’s Fund Plan Backed by Gray Group: Unit Votes, 19–12,
to Drop Pupil Assignment Formula, Richmond Times-Dispatch, Aug. 23, 1956, at 1.
215. Lassiter & Lewis, supra note 175, at 11.
216. Rose Bennett, Homey Chores Occupy Lone Distaff Delegate, Richmond NewsLeader, Jan. 11, 1962, in Stone Papers, supra note 172, at Series 10555-c.
217. Id. (internal quotation marks omitted).
218. Id. (internal quotation marks omitted).
219. Id.
220. Id. (internal quotation marks omitted).
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Treatment Center for Children at Richmond.221 The Center had an inpatient capacity of forty and was able to handle a heavy outpatient service
for “emotionally disturbed children.”222 That same year, “[a] Committee
for Youth was established by resolution to contribute to the coordination,
strengthening and extension of present state services for youth and to
encourage programs locally that contribute to the prevention of crime
and delinquiency [sic].”223
One policy idea was to lower the legal age at which children could
begin working and remove the state’s minimum wage law to provide employers with incentives to hire children.224 Unfortunately for Stone, however, both her minimum wage ban and a bill which “would have permitted children to work in public recreation facilities, outside of school
hours, with the consent of their parents” were killed.225 Opponents rejected the argument that the bills would “help reduce juvenile delinquency and be economically helpful to many families.”226
Despite such setbacks, Stone nevertheless boasted considerable
achievements in Virginia during her tenure. The Washington Post listed
among her greatest accomplishments the establishment of “a mobile psychiatric clinic, a state system of regional detention homes and a treatment center for emotionally disturbed youths.”227 Other successes mentioned included the creation of a “Governor’s Committee for Youth to
study how young people were being educated and trained for the changing job market” and her campaigns for a mental hospital in Northern
Virginia and various state colleges.228
Such measures combined to form both a more intrusive and more
nurturing state, replacing the complex network of criminal laws that proscribed interracial contact under Jim Crow.229 At the height of Jim Crow,
southern states skimped on social services to blacks, resulting in a type of
governmental vacuum when it came to state aid.230 That Brown en221. Memorandum from Carter O. Lowance, Governor’s Office, to Members of Va.
Gen. Assembly 7 (Mar. 12, 1962), in Joseph C. Hutcheson Papers, University of Virginia
Special Collections, at Series 9819.
222. Id.
223. Id. at 12.
224. Id.
225. Id.
226. Id.
227. Carper, supra note 170.
228. Id.
229. See generally Howard N. Rabinowitz, From Exclusion to Segregation: Southern
Race Relations, 1865–1890, 63 J. Am. Hist. 325 (1976) (describing late nineteenth-century
American South’s legal system’s transition from racial exclusion to racial segregation).
230. See Howard N. Rabinowitz, From Exclusion to Segregation: Health and Welfare
Services for Southern Blacks, 1865–1890, 48 Soc. Serv. Rev. 327, 343–44 (1974)
(“Occasionally whites and blacks did receive comparable treatment. . . . [But] [e]ven
where public officials provided for their care . . . the belief in Negro inferiority that had
once underwritten the policy of exclusion now led to an inequitable administration of
separate facilities.”).
Seq: 35
couraged state leaders to fill this vacuum is worth noting. Although
Brown is generally remembered for sparking massive resistance, Kathryn
Stone’s delinquency efforts indicate that Brown had a type of transformative effect on state formation in the region as well.
Though successful in transforming state law, Kathryn Stone’s reform
efforts were not without complications. Local segregationist officials employed measures that she endorsed to help delinquent youths for a very
different purpose: inhibiting civil rights demonstrations. Events in
Danville, Virginia, in 1963 illustrate this unfortunate regulatory side effect.231 Located near the North Carolina border in Virginia’s Southside,
Danville boasted tobacco processing plants, a Corning Glass Works factory, and the Dan River Mills, a massive operation employing thousands
of local workers.232
Danville also boasted a relatively hard-line segregationist past. In
1883, white residents gunned down African Americans in the street in a
bid to disrupt a burgeoning alliance between black Republicans and liberal white “Readjusters.”233 In 1906, blacks protested the introduction of
segregated streetcars to the city, only to meet an intransigent white response.234 Fifty years later, the Supreme Court’s decision in Brown met a
resolute wall of resistance. According to Virginia Senator Harry Flood
Byrd, the Supreme Court’s call for desegregating public schools constituted an “unconstitutional invasion” that had to be “resisted” just as vigorously as the South had resisted Union rule during Reconstruction.235
Frustrated by such intransigence, African Americans in Danville took
matters into their own hands, drawing inspiration from the 1963 civil
rights demonstrations in Birmingham, Alabama.236 Beginning on May
31st of that year, black demonstrators staged a series of marches through
downtown Danville, “impeding traffic and downtown business.”237 On
June 5th, black activists actually sat down in the middle of one of the city’s
231. See James W. Ely, Jr., Negro Demonstrations and the Law: Danville as a Test
Case, 27 Vand. L. Rev. 927, 937 (1974) [hereinafter Ely, Danville] (describing how Danville
used juvenile delinquency laws to “disquiet” young civil rights protestors by arresting their
232. Id. at 928.
233. Jane Dailey, Before Jim Crow: The Politics of Race in Postemancipation Virginia
105 (2000) (explaining violence in Danville “contributed to the downfall of the
234. August Meier & Elliot Rudwick, Negro Boycotts of Segregated Streetcars in
Virginia, 1904–1907, 81 Va. Mag. Hist. & Biography 479, 486–87 (1973) (discussing African
American boycotts of streetcars in major Virginia cities, including Danville).
235. Arthur Krock, Virginia’s New Step in the Federal-State Powers Issue, N.Y. Times,
Sept. 25, 1956, at 32.
236. Ely, Danville, supra note 231, at 932.
237. Id.
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busiest streets, “blocking all traffic.”238 Desperate to resume order, local
police called on Corporation Court of Danville Judge Archibald Aiken,
who possessed under Virginia law the authority to “suppress riots, routs,
and unlawful assemblies.”239
Though Aiken failed to disperse the protesters, he quickly issued an
injunction ordering the demonstrators off “the public streets” and away
from “entrances and exits to and from both private business concerns
and public facilities.”240 When the black activists refused to comply,
Aiken ordered a grand jury investigation into the protests’ leaders and
subsequently sanctioned a wave of arrests.241 By mid-June, over one hundred black demonstrators had been arrested and jailed for contempt.242
Many of the black demonstrators were under eighteen and were
treated as juvenile delinquents.243 But instead of entering the adult justice system where they could invoke their constitutional rights, the young
protesters found themselves shuttled into the very youth services that
Kathryn Stone had sponsored, and consequently were deprived of legal
representation.244 Meanwhile, the demonstrators’ parents were arrested
for the unlikely crime of “contributing to the delinquency of a minor,” an
offense that escaped the attention of civil rights attorneys like William
Kunstler, who successfully received a stay for the other demonstrators violating Aiken’s injunction.245 Many of the demonstrators did not have
their convictions overturned until 1973, a decade after the protests.246
Though Danville certainly did not typify the manner in which
Virginia’s delinquency statutes were enforced, it did indicate larger
problems with juvenile law across the South. Though advocates like
Kathryn Stone intended for such laws to embody the principle of parens
patriae, or parental care, they became convenient ways of silencing dis-
238. Id.
239. Id. at 932 & n.20 (citing Va. Code Ann. § 18.1-247 (1950) (repealed 1975)).
240. Id. at 933 & n.21.
241. Id. at 933, 935; see also Len Holt, An Act of Conscience 23–25, 93–95 (1965)
(describing police’s forceful reaction to gathering of peaceful protestors).
242. Ely, Danville, supra note 231, at 936.
243. Id. at 937.
244. Unlike adult demonstrators, teenagers found themselves victims of many of the
protections offered to youth, among them the notion that proceedings involving children
should focus on the psychological well-being of the child and therefore should not assume
an adversarial posture. Danville’s teenage rebels therefore found themselves in a type of
legal limbo, a position that did not change until the Supreme Court considered the
question in 1967. See In re Gault, 387 U.S. 1, 57 (1967) (“[A] determination of
delinquency . . . cannot be sustained in the absence of sworn testimony subjected to the
opportunity for cross-examination in accordance with our law and constitutional
245. Ely, Danville, supra note 231, at 937, 950.
246. Id. at 964 (noting overturning of over 270 convictions).
Seq: 37
sent.247 In Hyde County, North Carolina, for example, police arrested
over forty black youth—all under the age of sixteen—for participating in
a mass demonstration in 1968, part of a series of protests related to the
closing of a local black school that the trial court reframed as an act of
delinquency.248 When the children appealed their convictions on the
ground that North Carolina’s Juvenile Courts Act was unconstitutionally
vague, a state appellate court ruled against them.249 “All of the cases,”
declared the appellate judge, “stem from what may be classified as a concerted demonstration by Negroes of Hyde County to assert their [defiance] of law and order and to disrupt the normal economic and social
life of Hyde County.”250 The children had blocked traffic in Swan
Quarter, North Carolina, prompting the court to place them on probation and threaten institutionalization if they engaged in any further protest activity.251
The threat that delinquency laws posed to civil rights became particularly apparent in Birmingham, Alabama in 1963. That spring, civil
rights leaders struggled to mount demonstrations in the city, often confronting opposition from older, more conservative members of the black
community.252 Realizing that new volunteers were vital to sustain the
protests, black leaders Ralph Abernathy, Fred Shuttlesworth, and Martin
Luther King, Jr. scrambled to drum up support, even going to New York
to cultivate the interest of pop celebrity Harry Belafonte.253 Though
Belafonte declined, the movement enjoyed a breakthrough when black
activist and minister James Bevel decided to enlist children.254 To Bevel’s
mind, if children could be coaxed from school to the streets, then the
demonstrations would regain “momentum,” a theory that outraged some
but inspired others, including “Tall Paul,” a local rock and roll disc jockey
who generated teen interest in a mass May 2nd demonstration with “a
jived-up announcement” over the radio.255
From Thursday, May 2, through Tuesday, May 7, thousands of black
children left school and streamed through the streets of Birmingham,
247. See generally John Seymour, Parens Patriae and Wardship Powers: Their Nature
and Origins, 14 Oxford J. Legal Stud. 159 (1994) (discussing development and differing
interpretations of parens patriae jurisdiction).
248. In re Burrus, 167 S.E.2d 454, 455–56 (N.C. Ct. App. 1969); see also David
Cecelski, Along Freedom Road: Hyde County, North Carolina and the Fate of Black
Schools in the South 57, 60, 106–09 (1994) (describing involvement of black teenagers in
civil rights protests in Hyde County, North Carolina).
249. In re Burrus, 167 S.E.2d at 461.
250. Id. at 457.
251. Id. at 456–57.
252. See Branch, Waters, supra note 105, at 704, 761 (describing black opposition to
Birmingham demonstrations).
253. Id. at 705–06.
254. Taylor Branch, Pillar of Fire: America in the King Years 1963–65, at 75 (1998).
255. Branch, Waters, supra note 105, at 754–55, 761.
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testing the ability of law enforcement to maintain order.256 Though local
police employed school buses to carry the children to nearby jails, correctional facilities quickly filled, pushing police to employ more violent
crowd dispersal tactics like fire hoses and dogs.257 As “teenagers waved
waterlogged shirts like bullfighters,” dogs bit three children badly enough
to send them to the hospital while firemen trained high pressure hoses
on children in the street, “pounding them with water at close range.”258
The ensuing photographs shocked the world, creating “a swell of public
sympathy” for Martin Luther King, Jr. and the civil rights movement.259
Though risky, the “children’s crusade” proved one of the biggest victories
of the black freedom struggle, a triumph made all the greater by the
power of mass communications.260
Yet, even as their crusade transformed hearts and minds,
Birmingham’s black children found themselves facing protracted legal
problems not unlike their black peers in Hyde County, North Carolina
and Danville, Virginia.261 Such problems began almost immediately following the demonstrations, as youth found themselves locked in county
jails, sent to detention homes, and caged in outside holding pens at the
Birmingham fairgrounds.262 The subsequent rate of convictions for delinquency in the city spiked, almost a quarter of them falling under the
new rubric of “[d]emonstrating.”263 Meanwhile, the Birmingham Board
of Education “directed the expulsion or suspension of 1,081 Negro students arrested in the street demonstrations,” all of whom had to be handled by the juvenile court.264 Arrests of black youths continued to remain high for the next few years, as complaints of police brutality rose to
the forefront of local black concerns.265
Commenting on the dangers that the southern juvenile justice system posed to black youth, National Council of Juvenile Court Judges
member James Starrs noted in 1966 that not only were “large numbers of
children directly involved in all kinds of demonstrations,” but southern
juvenile courts tended to “intimidate civil rights demonstrators,” either by
256. Id. at 756–61, 764, 770, 776; see also Talbot Ellis, Judge Ellis Tells of Birmingham
Problems, 14 Juv. Ct. Judges J. 34, 35 (1963) (placing number of black youth processed by
Birmingham’s juvenile court above one thousand).
257. Branch, Waters, supra note 105, at 756–61, 764, 770.
258. Id. at 759–61.
259. Id.
260. See Glenn Eskew, But for Birmingham: The Local and National Movements in
the Civil Rights Struggle 299 (1997) (describing impact of children’s crusade on civil rights
“stalemate” at both local and national levels).
261. Robin D.G. Kelley, Race Rebels: Culture, Politics, and the Black Working Class
90–91 (1994).
262. Branch, Waters, supra note 105, at 772; Ellis, supra note 256, at 35.
263. Kelley, supra note 261, at 90.
264. Ellis, supra note 256, at 34–35.
265. See Kelley, supra note 261, at 91 (“Two years after the mass demonstrations of
1963, arrests of black youth were still disproportionately higher than arrests of white
youths . . . .”).
Seq: 39
threatening them with “long periods of inhuman confinement,” or
threatening to “invoke [their] continuing jurisdiction to recall and redetermine the case of any juvenile upon his breach of elaborate and obscure probationary conditions.”266 Though often recruited because they
appeared to “have less to lose,” Starrs argued that children actually had
more to lose than adults, including the loss of their education, the stigma
of being declared a delinquent, and the punishment of potentially being
removed from home and “commit[ted].”267
High rates of participation by black youth in civil rights protests
prompted courts to gradually change their traditional hands-off posture
toward cases involving children, moving to more aggressive articulations
of youth rights.268 On July 20, 1964, for example, the Court of Appeals
for the Fifth Circuit ruled in favor of Linda Woods, a black student who
had been expelled from high school for participating in the children’s
crusade in Birmingham.269 Noting that Woods’s expulsion risked serious
harm to her future, the Court overcame its traditional “reluctance” to
deploy “injunctive power” against state officers, barring Birmingham’s
school superintendent from using “discipline for truancy” as “an instrument of racial discrimination.”270
Two years later, the Supreme Court of Mississippi ruled that, pursuant to the State’s Youth Court Act, juveniles were entitled to legal counsel
in delinquency proceedings.271 Thrilled, civil rights attorneys used the
decision “to sanction their regular attendance at court on behalf of civil
rights workers.”272 Meanwhile, attorneys not immediately involved in the
civil rights movement took note, among them New York University Law
Professor Norman Dorsen, who at that time represented Gerald Francis
Gault, a juvenile arrested for using lewd speech over the phone in
Arizona.273 Undeterred by a series of losses at the state level, Dorsen appealed Gault’s case to the United States Supreme Court, citing both the
Mississippi juvenile counsel case and an article describing the importance
of securing attorneys for juveniles.274 The resulting opinion—In re
Gault 275—helped transform juvenile law in America, making juvenile proceedings more like adult criminal trials.276
266. Starrs, supra note 168, at 109.
267. Id. at 110.
268. See, e.g., Woods v. Wright, 334 F.2d 369, 371–75 (5th Cir. 1964) (entertaining
arguments that black youth had been denied “the right not to be arbitrarily expelled from
the public school”).
269. Id.
270. Id. at 375.
271. In re Long, 184 So. 2d 861, 862 (Miss. 1966).
272. Starrs, supra note 168, at 119.
273. Brief for Appellants, In re Gault, 387 U.S. 1 (1967) (No. 116).
274. Id. at 39.
275. In re Gault, 387 U.S. 1.
276. See Frank J. Ceresi, In re Gault: A Constitutional Celebration, 8 Child. Legal Rts.
J. 11, 12–14 (1987) (providing background on juvenile law and describing impact of
Gault); Norman Dorsen, Reflections on In Re Gault, 60 Rutgers L. Rev. 1, 4–8 (2007)
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Though the beginning of the end for informal juvenile delinquency
proceedings, Gault revealed a complex, if oddly parallel, relationship to
Brown. Both cases disrupted local practice to build a constitutional firewall around youth. Yet, while Brown encouraged the expansion of state
services for youth, Gault made those services look more like the adult
criminal system. Here, recounting the manner in which Brown both
heightened fears of delinquency and encouraged states like Virginia to
expand their youth services is important, precisely because it helps explain how the decline of Jim Crow sparked the growth of new forms of
state regulation and control. Indeed, the experience of teen demonstrators in Danville, Virginia; Hyde County, North Carolina; and
Birmingham, Alabama suggests that one byproduct of Brown’s liberal
mandate may have been early tendencies towards a school-to-reformatory,
if not prison, pipeline.
Concerns over the intersection of desegregation and juvenile delinquency spawned a complex series of interactions between Supreme Court
constitutionalism and state law in the 1950s and 1960s. Recovering these
interactions complicates current narratives of law’s role in the civil rights
movement, even as it points to possible consequences of the movement
that have so far gone unnoticed. At least three significant contributions
to the legal history of civil rights follow.
First, once we look at concerns over juvenile delinquency in the
1950s, we suddenly see that popular culture and popular science both
emerged as central fronts in the larger war over constitutional rights at
(describing trial strategy and oral argument of Norman Dorsen in Gault); Katherine R.
Kruse, In Re Gault and the Promise of Systemic Reform, 75 Tenn. L. Rev. 287, 287, 289
(2008) (characterizing Gault as “an effort at systemic reform” and arguing for participation
of juvenile defenders in “stakeholder model”). The first case in which the Supreme Court
ventured down this path came from Washington, D.C., a fitting factor given the early
attention the District had attracted for delinquency in its integrated schools. See Kent v.
United States, 383 U.S. 541, 561 (1966) (holding juvenile court judge’s waiver of
jurisdiction invalid because of failure to hold hearing with child’s lawyer present and
failure to provide reasoning of decision). The appellant, Morris Kent, was arrested in 1959
for “several housebreakings and an attempted purse snatching.” Id. at 543. Two years later
he was arrested again after police discovered one of his fingerprints at a rape scene. Id.
Appalled, the juvenile court judge waived his exclusive jurisdiction of the case and
transferred Kent to an adult prison without any kind of hearing or legal proceeding. Id. at
546. Though the Supreme Court did not sympathize with Kent, it bridled the juvenile
judge’s failure to provide the minor with any kind of due process, not to mention parens
patriae, or parental care. “While there can be no doubt of the original laudable purpose
of juvenile courts,” asserted the majority’s opinion, “studies and critiques in recent years
raise serious questions as to whether actual performance measures well enough against
theoretical purpose to make tolerable the immunity of the process from the reach of
constitutional guaranties applicable to adults.” Id. at 555. The Court remanded Kent’s
conviction, holding that he was “entitled to a hearing” and deserved “access by his counsel”
to “social records,” “reports,” and “a statement of reasons for the Juvenile Court’s
decision.” Id. at 557.
Seq: 41
the time. Initially invoked by NAACP attorneys eager to communicate
the evils of Jim Crow in Brown, delinquency discourse drew from both
cultural and scientific idioms articulated by popular psychiatrists like
Fredric Wertham,277 only to find its way into the mouths of segregationists eager to invoke cultural portrayals of delinquency against black
rights.278 Not only did segregationists invoke cultural icons like the controversial film Blackboard Jungle, but they also tapped into the popular
discourse of social science, investigating delinquency in Washington, D.C.
schools and gloating over outbursts of juvenile crime in New York.279
Meanwhile, the NAACP’s long-forgotten Youth Division re-engaged segregationists on cultural terrain, first by elevating black cultural stars like
Blackboard Jungle lead Sidney Poitier, and second by staging youth rallies
and marches that foreshadowed some of the most effective tactics of the
direct action phase of the civil rights movement.280 Again and again, civil
rights activists and white segregationists engaged on cultural ground,
hoping to curry favor for their conflicting constitutional positions.
Second, although white resistance to Brown has generally been characterized as an extremist backlash, this was neither the only nor, arguably,
the most significant segregationist response to the ruling. While extremists blustered, white moderates in states like Virginia moved quickly to
address concerns that desegregation would cause delinquency, leading to
dramatic increases in the scope and reach of the southern state.281 Such
modernizations were exemplified by the efforts of Virginia moderate
Kathryn Stone, a political official who almost single-handedly expanded
Virginia’s juvenile justice system to include additional reform schools, detention centers, and mobile psychiatric services, all better equipping the
state to deal with juvenile unrest.282
Stone’s state innovations aimed to help youth, but they ended up
having an unanticipated effect—the third explanation this piece contributes to the scholarship. As civil rights demonstrations exploded in 1963
in Danville, Virginia, local law enforcement officials discovered that designations of delinquency proved an effective means of neutralizing youth
277. See supra Part II (discussing how NAACP sought to harness popular concerns
over delinquency).
278. See supra notes 122–133 and accompanying text (discussing segregationists’
manipulation of vital statistics to support argument that integration would harm whites).
279. See supra notes 134–160 and accompanying text (discussing House
Subcommittee’s study of integrated schools in Washington, D.C.).
280. See supra notes 89–103 and accompanying text (discussing NAACP’s attempts to
pursue the youth question by focusing on mass media and popular culture).
281. See supra Part IV (discussing legislative impact that delinquency scare had on
the South). The civil rights movement spawned state modernization in other contexts as
well, particularly policing. See, e.g., Anders Walker, The Violent Bear It Away: Emmett
Till and the Modernization of Law Enforcement in Mississippi, 46 San Diego L. Rev. 459,
461 (2009) (noting Mississippi’s expansion of state police to avoid federal intervention in
wake of Emmett Till’s murder).
282. See supra notes 190–228 and accompanying text (discussing Stone’s campaign to
lobby for state services for D.C. schools).
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activists and undermining civil rights protest.283 Precisely because children provided popular soldiers in a movement that often struggled to
gain senior support, black youth became easy targets for delinquency
prosecutions in places as disparate as Danville, Virginia;284 Hyde County,
North Carolina;285 and Birmingham, Alabama.286 Indeed, in
Birmingham, children formed the vanguard of almost a week of intense
demonstrations against police that roused national support for the cause
of civil rights, only then to find themselves incarcerated in jails, expelled
from schools, and forgotten.287
Though courts took an increased interest in guaranteeing legal
rights for such children, even rulings like In re Gault nudged juvenile justice away from a care-giving, “parens patriae” posture and toward a more
punishment-oriented, detention-friendly version of the adult system.288
For children caught in that system, a new, arguably frightening civil rights
dynamic began to take shape. So long as law enforcement failed to do its
job peacefully, popular support for racial equality spiked and the children involved in civil rights protest emerged as heroes. However, once
law enforcement and juvenile justice worked together to process juvenile
protestors quietly and efficiently, public interest in demonstrations flagged, and the children involved in those protests found themselves designated truants and delinquents.289
Put simply, even as the civil rights movement led to impressive federal interventions and legislation on behalf of racial equality, including
the Civil Rights Act of 1964 and the Voting Rights Act of 1965, so too did
the movement spark a transformation in southern law enforcement, a
move away from the public deployment of violence and toward an emphasis on efficiently “identifying and managing unruly groups,” the very
essence of what Malcolm Feeley and David Simon have since identified as
the “new penology.”290
Though criminal justice scholars like Simon and Feeley tend not to
locate the birth of mass incarceration in the midst of the civil rights victories of the 1960s, this may be partly because they fail to adequately acknowledge the extent to which discourses of delinquency and crime permeated cultural portrayals of the movement, sanctioning the peaceful
carrying away of black demonstrators to jail so long as they did not suffer
283. See supra notes 231–246 and accompanying text (discussing civil rights marches
in Danville, Virginia).
284. See supra notes 231–246 and accompanying text.
285. See supra notes 248–251 and accompanying text.
286. See supra notes 252–265 and accompanying text.
287. See supra notes 252–265 and accompanying text.
288. See supra notes 273–276 and accompanying text (discussing In re Gault’s effect
on juvenile justice system).
289. See supra Part V (explaining how juvenile delinquency laws were used against
young demonstrators).
290. Malcolm M. Feeley & Jonathan Simon, The New Penology: Notes on the
Emerging Strategy of Corrections and Its Implications, 30 Criminology 449, 449 (1992).
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public violence.291 Public indifference to the quiet incarceration of “delinquent” black youth in the 1950s and 1960s, in other words, may have
become a critical determiner in whether states decided to allocate money
to meet black demands or—as was the case in Alabama, North Carolina
and Virginia—employ incarceration to quiet social unrest.
Herein lies the last contribution of this piece. Though long forgotten, battles over whether integration and black activism were to be viewed
through the cultural frames of equity, i.e., racial justice, or delinquency
became central to the legal struggle over civil rights at mid-century. Even
as national leaders touted the successes of the civil rights movement (the
equity frame), those successes ultimately masked the extent to which state
government and public funds themselves moved in a very different direction toward managing “unruly” groups (the delinquency frame), a move
that prefigured what criminal justice scholars currently call the school-toprison pipeline.292 Put simply, public indifference to the quiet incarceration of “delinquent” black youth in the 1950s and 1960s raises important
questions about the mass incarceration of young African Americans today, not to mention the larger puzzle of persistent racial inequality—yet
decline in overt racism—in the twenty-first century United States.
291. See, e.g., Mona Lynch, Sunbelt Justice: Arizona and the Transformation of
American Punishment 5–10 (2010) (describing shift from reform to warehousing,
attributable in part to “get-tough” conservative policies).
292. See, e.g., Chauncee D. Smith, Note, Deconstructing the Pipeline: Evaluating
School-to-Prison Pipeline Equal Protection Cases Through a Structural Racism Framework,
36 Fordham Urb. L.J. 1009, 1012 (2009) (“The phrase ‘school-to-prison pipeline’
conceptually categorizes an ambiguous, yet seemingly systematic, process through which a
wide range of education and criminal justice policies and practices result in students of
color being disparately pushed out of school and into prison.”); see also Tona M. Boyd,
Note, Confronting Racial Disparity: Legislative Responses to the School-to-Prison Pipeline,
44 Harv. C.R.-C.L. L. Rev. 571, 571 (2009) (describing proposed legislative fixes and
offering proposals to end “racially disparate impact of current system of juvenile
discipline”); Johanna Wald & Daniel J. Losen, Defining and Redirecting a School-to-Prison
Pipeline, New Directions for Youth Dev., Fall 2003, at 9, 12–14 (summarizing studies that
“provide clear evidence of dysfunctional systems that not only fail to serve the neediest
children but in fact . . . create conditions that exacerbate the harm inflicted on them”).
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