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32 Social Science and Segregation before Byown HERBERT HOVENKAMP No historical legal policy can be evaluated without an understanding of the framework in which the policymakers viewed the world. If members of a society believe a particular scientific theory-for example, that interracial sex produces degenerate children-then they may be willing to sacrifice a great deal to avoid the consequences of interracial marriages. If they later discover that interracial marriages have no such consequences , then their views will probably change accordingly. In short, people's scientific view of the world determines in large part the social situation that they regard as optimal. The genetic determinism that dominated social science in the last part of the nineteenth century made strict racial segregation appear to be socially prudent. Later, when environmentalism gradually replaced genetic determinism as a theory of race, racial separation became less valuable to society as a whole. When that happened, certain competing valuessuch as Americans' more general concern with equality-began to weigh more heavily. In discussing the history of the law of race relations, it is useful to distinguish two ways in which courts were influenced by scientific theories. Some scientific data were presented directly to the courts-as in Justice Brandeis's famous brief in Muller v. Oregon,l which used social science data to convince the Supreme Court that a state had the constitutional power to regulate the working hours of women even though it could not do so for men. A second influence was the "background" scientific information that formed part of a judge's perception of the world. A judge's views about the propriety of state-mandated segregation were necessarily a product of both sources of information. Each had an important yet distinctly different influence on the case law of race relations in the late nineteenth and early twentieth centuries. In Berea College v. Kentucky,2 decided only a few months after Muller v. Oregon,3 the United States Supreme Court was for the first time directly confronted with social science data about race. Its decision in Berea College upheld as constitutional a Kentucky statute mandating statewide school segregation. Berea College was a church school, a product of the evangelical antislavery movement of the 1830s. Its geographic setting, in one of the four slaveholding states that remained with the Union during the Civil War,4 caused it to experience more difficulty than other small, struggling religious institutions. Berea College entered the post-Reconstruction period as an ideological rarity: a school committ~d to the integrated education of white and black students, but isolated in a southern, formerly slaveholding state. 1985 Duke L.J. 624. Originally published in the Duke Law Journal. Reprinted by permission. Copyrighted Material 200 Herbert Hovenkamp The college managed to survive local opposition during and after Reconstruction-financial starvation, aggressive racial hostility, and occasional acts of violence against its faculty and students. It did not fare so well against the new science and politics of the Gilded Age. Before the turn of the century, a large number of scientific studies warned against the dangers of racial mixing. Both scientists and laypersons generally believed that AfroAmericans were inherently inferior, that they learned much more slowly than white persons , and that their close association with whites could contaminate and weaken the white race. After the Civil War, the possibility of substantial racial mixing became real; the prospect most feared was that of interracial marriage, or //miscegenation.// Nearly everyone assumed that the way to prevent interracial sexual contact was to keep the races separated , particularly in institutions where young people's values were developed, such as the schools. In 1904 the Kentucky legislature passed a law prohibiting the operation of //any college, school or institution where persons of the white and negro race are both received as pupils for instruction.//s The statute was aimed directly at Berea-Kentucky's only integrated college. Berea violated the new law, was fined $1000, and challenged the constitutionality of the statute. The college advanced several constitutional arguments, some of which would later become law. Although the fourteenth amendment did not prohibit the state from using its police power to force segregation of public schools,6 Berea was a private school. The college asserted that its students had the right to associate with whom they pleased as long as they did not interfere with the rights of outsiders. Furthermore, because integrated education was an important part of the Bereans' religious beliefs, Kentucky was interfering with the...


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