Signposts: New Directions in Southern Legal History

Race, Law, and Southern Public Higher Education, 1860s–1960s

369 During the century from the 1860s through the 1960s— the hundred years after universal emancipation—the law of race and higher education in the U.S. South went through a series of substantial changes. In various configurations, three forces or groups lined up to shape the law of race and higher education in the region: (1) black southerners, (2) white policy makers in southern states, and (3) federal authorities (mostly Congress or the courts). To be sure, none of the three groups can be assumed to be a monolith. White students, school administrators, alumni, politicians , and judges might be divided, among these subgroups or within them. Black applicants to white schools and black school administrators could differ . In the twentieth century, the Supreme Court’s justices—keepers of the Constitution—diverged for a time from the executive branch and especially from Congress. This essay tracks change and continuity in the law of race and southern public higher education across the hundred years from black freedom and citizenship in the 1860s through the legal and constitutional transformation of the 1950s and 1960s. It highlights some key features in the shifting legal and constitutional landscape of higher education. While paying due attention to the major markers of constitutional law with regard to race and higher education, it explores other dimensions of legal history as well. Congressional acts framed much of the law of race and public higher education. State statutory and other responses—whether to congressional legislation, judicial rulings, or the desires of black citizens—contributed a great deal to the shaping of higher education as well. On the ground, the South acted as a unit of information gathering and distribution. State governors consulted each other at major junctures of federal lawmaking, as did white university Race, Law, and Southern Public Higher Education, 1860s–1960s Peter Wallenstein 370 Peter Wallenstein presidents, and black administrators too no doubt huddled as news moved swiftly through their communities about new opportunities or rebuffs on the higher education front. Then individuals in each group had to decide whether and how to respond, adjusting to shifts in the law or seeking to make those changes. Just as segregation in public elementary education characterized virtually every schoolhouse in the South from the post–Civil War dawn of public schooling, the “separate but equal” formula in higher education clearly preceded , and therefore could scarcely result from, the high court’s 1896 ruling in Plessy v. Ferguson. But Plessy served two important functions over the sixty years between 1896 and a 1956 decision that built on the 1954 and 1955 rulings in Brown v. Board of Education. First, Plessy thwarted attempts on constitutional grounds to secure a nonsegregation policy in higher education . Second, from the 1930s into the 1950s, Plessy supplied a target for black lawyers and litigants as they sought to chip away at the separate or seize more of the equal in the formula. Regarding the rhetoric of race, this essay uses the shorthand of black and white. It does not consider how the laws defining white and colored differed from one state to another or could change from one time to another in any state. It does not speak of groups that were “nonwhite” yet not African American. Elsewhere I have written about how, during the half century before Brown v. Board of Education, Native Americans were white when attending the University of Oklahoma, Latinos might be white and attend the University of Texas, and people from various countries in Asia attended most “white” southern universities during the final decades of the Age of Segregation. In the 1920s, Japanese American Taro Kishi played varsity football at Texas A & M College, as did Art Matsu at the College of William and Mary. Right after World War II, Chinese Mississippians began freely attending their home state’s “white” land-grant college and flagship university. So the great struggle took place over whether African Americans could cross over a boundary that put them outside the “nonblack” category in gaining access to what are often inappropriately termed “all-white” institutions of higher education. For reasons of space, this essay works within two other constraints. It cannot offer a systematic comparison of developments in the South and those outside the region, though such would be necessary to discern the particularities of patterns found in the South. And it focuses almost exclusively on public institutions of higher education—“public” in the sense of [3.138.125.2] Project MUSE (2024-04-19 21...