Justice Harlan’s “Great Betrayal”? A Reconsideration of Cumming v. Richmond County Board of Education

Justice H arlan ’s “G reat B etrayal”?ONMLKJIHGFEDC A R econsideration of Cumming v. Richmond County Board of EducationRQPONMLKJIHGFEDCBA C . E L L E N C O N N A L L Y zyxwvutsrqp In 1899 the Supreme Court of the United States decided the case of ZYXWVUTSRQPONMLKJIHGFEDCBA Joseph W . C um m ing, Jam es S. H arper, and John C . L adeveze v. The C ounty B oard o f E ducation o f R ichm ond C ounty, State o f G eorgia.1 The litigation arose after the all-white Richmond County School Board closed Ware High School, a segregated, tax-supported, all-black high school in the City of Augusta, GA. The plaintiffs did not seek integration of the Augusta Public Schools. They did not lodge a complaint regarding the separation by race of children in the primary grades. They did not attempt to compel the board to provide a high school for blacks. Their demand was for injunctive relief that would force the closing of the white high school through the withholding of tax support until the black high school was reopened. This approach succeeded in the trial court but failed in the Georgia Supreme Court.2 In an opinion written by Justice John Marshall Harlan, the Justice who had just three years before asserted that the constitution was color­ blind,3 the Supreme Court of the United States sustained the ruling of the Georgia Supreme Court denying the request for injunctive relief. Ware High School was not reopened. Historians and legal scholars cite C um m ing v. R ichm ond C ounty B oard o fE ducation as the first school desegregation case decided by the Supreme Court of the United States.4 It was also the decision that first applied the doctrine of separate-but-equal to public schools,5 and held that separate schools do not violate the Equal Protection Clause of the Fourteenth Amendment.6 C um m ing also established the proposition that tax-supported state schools are within the purview of the states and must not be disturbed by the federal government ex­ cept in cases in which federal rights are in­ volved.7 With such significant findings attrib­ uted to the case, it is interesting to note that C um m ing has only been cited by the Supreme Court six times since 1899.8 In 1980, historian J. Morgan Kousser used C um m ing v. R ichm ond C ounty B oard as the framework for his study of the black elite in H A R L A N ’S “G R E A T B E TR A Y A L ”?RQPONMLKJIHGFEDCBA 73 A bird's-eye view of A ugusta, G eorgia, in 1 8 7 2 show s th e b u ild in g th at housed W are H igh S chool (in d icated ONMLKJIHG by arrow ), th e first public high school for A frican A m ericans in G eorgia and one of only five such schools in the S outh in th at era. This is th e only know n im age of th e school b u ild in g , w hich w as dem olished after it w as closed in 1 8 9 7 by th e R ichm ond C ounty S chool B oard.zyxwvutsrqponmlkjihgfedcbaZYXWVUTSRQPONMLKJIH late nineteenth-century Augusta.9 Kousser’s stands as the only in-depth study of the case.10 To the extent that Kousser related the social history of Augusta’s black elite, he was very successful. However, as the 100th anniversary of the ZYXWVUTSRQPONMLKJIHGFEDCBA C um m ing decision approaches, Kous­ ser’s misinterpretation of some legal aspects of C um m ing and its misinterpretation by some courts makes timely a reconsideration of the case and its legacy. A careful analysis of the ruling in C um ­ m ing demonstrates that the decision did not deal directly with the issue of racial segrega­ tion in public schools. Because the existence of a black high school was at issue, lower federal courts and state courts fashioned a separatebut -equal formula for schools out...