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Chapter 13. Trial by Three Judges, 1971–75
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Chapter 13 Trial by Three Judges, 1971-75 The Sixth Circuit did not stand alone in rejecting the call to retreat sounded by Justice Rehnquist's opinion for the Supreme Court in the first round of the Dayton case. Four other federal courts of appeals-the Second, Third, Fifth, and Eighth Circuits-examined the issue of whether the "incremental segregative effect" conundrum legitimized all school segregation at the current level of segregation in housing. Each rejected such a view. These appellate courts determined that official discrimination by school authorities had contributed substantially to the de jure reality of school and housing segregation. Until explicitly told otherwise by the high court, each would insist that the remedy for such intentional segregation be actual school desegregation. Perhaps the most important of these cases concerned Wilmington, Delaware , and its northern New Castle County suburbs. The case started before Brown; but a generation later it was still going strong. Along the way, it inherited the problems of the school district boundary barrier raised by the Supreme Court's decision in the Detroit case, as well as the incremental segregative effect defense offered by the Court's decision in the Dayton case. Thus, the Wilmington case was a microcosm of the entire legal challenge to segregation in America. Visible Man The conscience of one man spurred this thirty-year legal struggle in Delaware. Louis Lorenzo Redding was born at the beginning of the twentieth century and attended Delaware's state-mandated and state-financed colored schools in Wilmington with Negro children from all over New Castle County. His parents graduated from Howard University and had joined the NAACP, at its inception, to fight against racial caste. They remained active in Wilmington's local branch, where Redding's father served as executive secretary for twentyfive years. Young Redding learned firsthand the "proscriptions and restrictions of segregation": Jim Crow laws and customs divided blacks from whites in every aspect of community life in Wilmington, except on the trolleys and in the library. In 1918 Louis Redding graduated from the blacks-only Howard High School with his black classmates from all parts of Delaware who, some fifty years after the First Reconstruction, were not yet free from Jim Crow segregation. He attended Brown University in the Ivy League and spoke at his class commencement in 1923. 283 284 Beyond Busing Redding's father counseled him to become a physician, primarily because "lawyers, particularly Negro lawyers, starve for a long while, but doctors can serve humanity and earn a livelihood from the outset." While at Brown, however, Redding had been inspired by William H. Lewis, an assistant attorney general of the United States and a Negro, to become a lawyer. He was accepted at the Harvard Law School on a scholarship. Redding, however, needed more money for living expenses to survive during his legal training. For a year, therefore, he became a vice-principal at the Fessenden Academy near Ocala, Florida, which was operated by the American Missionary Association. He spent another summer in Chicago as a night clerk in the post office and another year teaching English at Morehouse College in Atlanta in order to save enough money for his legal education. He matriculated at Harvard Law School in 1926. While home for one Christmas vacation, Redding witnessed the Jim Crow system of justice in Delaware. He visited the county courthouse for the first time in his life and sat in the whites-only section. He was rudely greeted by three white bailiffs who told him, "You ain't supposed to sit here. " It was the first shot in a prolonged battle between Louis Redding and Delaware ,'justice. ' , After graduating in 1929, Louis resolved to practice law in New York City with some friends, despite the entreaties of his father to break the color line of the Delaware bar. The elder Redding became insistent, however: if a son was going to reject a father's advice on careers, at least he could come home to practice law and to eat home cooking. Redding wrote to Delaware lawyers, all of whom were white, to see if any would hire him for the six months of apprenticeship required by Delaware as a prerequisite to taking the bar examination. When none of the established lawyers expressed any interest, the elder Redding pressured the new United States senator from Delaware to serve as his son's mentor; political expediency , the black vote, and the senator's lack of contact with any active...